Appeal from the Circuit Court of Cook County. Honorable Catherine M. Haberkorn, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
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 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 post-conviction petitions. *fn1 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. *fn2 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. *fn3
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. ...