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People v. Gholston

June 22, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH GHOLSTON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

No. PC 4822

Honorable Colleen McSweeney Moore, judge Presiding.

OPINION UPON DENIAL OF REHEARING

Defendant Kenneth Gholston filed this appeal of the trial court's dismissal of his petition to compel genetic marker (DNA) testing and his supplemental post-conviction petition. Defendant challenges: (1) the trial court's refusal to order DNA testing of a sexual assault victim's Vitullo kit based on his claim of actual innocence, and (2) the trial court's refusal to correct defendant's mittimus.

Following a jury trial, defendant was found guilty of various sexual offenses, robbery, aggravated battery and conspiracy to commit robbery stemming from the sexual assault of a 15-year-old girl and an attack on her two male companions in 1981. Eight other defendants were prosecuted and convicted for their involvement in these offenses; five of them were also convicted of the sexual crimes along with defendant. Defendant's convictions were affirmed on direct appeal, as were the convictions of four co-defendants. People v. Gholston, 124 Ill. App. 3d 873, 464 N.E.2d 1179 (1984).

I. FACTS

The facts of this case are specifically detailed in the court's opinion affirming defendant's convictions on direct appeal; therefore, we will only discuss facts relevant to the post-conviction petitions. Gholston, 124 Ill. App. 3d at 877-82.

At trial, the 15-year-old victim, identified as D.T., testified that at least six males sexually assaulted her on an "el" platform on December 27, 1980, at about 11:40 p.m. Defendant was identified as the first to engage in forcible vaginal intercourse with the victim, and he also attempted forced anal intercourse on the victim. Next, Darrell King, Dennis King, Anthony Gholston and Danny Gholston sexually assaulted the victim. These offenders engaged in both forcible oral and vaginal intercourse with the victim. David Love, the last offender to sexually assault the victim, pushed her off the el platform and forcibly engaged in vaginal intercourse with the victim in the snow near the el tracks. The victim's two male companions were beaten and robbed.

Following the sexual assault, the victim identified defendant as one of the offenders who sexually assaulted her. She also made an in-court identification of defendant. Furthermore, one of the victim's male companions identified defendant at a lineup but was unable to identify defendant in court. The other male companion identified defendant in court. In addition, during an interview with an assistant State's Attorney, defendant admitted he was involved in the robbery and battery of the two males on the el platform but denied committing any offenses against the female victim.

Defendant was one of nine defendants prosecuted for the sexual offenses and aggravated battery against the female victim, and for robbery, aggravated battery and conspiracy to commit robbery against the two male victims. Six defendants, including defendant Kenneth Gholston, were alleged to have been principals in the sexual assault and all six were convicted of the sexual offenses and aggravated battery against the female victim. These six defendants were also convicted of the charges against the two male victims. The remaining three defendants were convicted only of the crimes against the male victims.

The jury found defendant Kenneth Gholston guilty of rape, deviate sexual assault, indecent liberties with a child, two counts of robbery, three counts of aggravated battery and one count of conspiracy to commit robbery. The trial court sentenced defendant to a total term of 258 years' imprisonment. On direct appeal, this court held that under section 5-8-2 of the Unified Code of Corrections, defendant could not receive a sentence greater than the sum of the two most serious felonies involved. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(2). Thus under the existing law, the court found that the maximum term for rape or deviate sexual assault was 60 years. Therefore, the court modified defendant's sentence to provide for an aggregate term of 120 years. Gholston, 124 Ill. App. 3d at 897. Defendant's mittimus was never amended pursuant to this court's modification of defendant's sentence on direct appeal. In addition, defendant's mittimus incorrectly reflects convictions and sentences for two counts of indecent liberties with a child and convictions and sentences for five counts of aggravated battery.

On March 3, 1993, defendant filed a petition to compel genetic marker testing. In addition, in September 1995, defendant filed a supplemental post-conviction petition. In both petitions, defendant requested that vaginal swabs and slides contained in the victim's Vitullo kit be subjected to DNA genetic marker testing. On September 6, 1995, the trial court ...


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