No. 1-20-0188

Order filed September 7, 2021.

Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 81 C 540 ) KENNETH GHOLSTON, ) The Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.

ORDER

¶1 Held: Circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition is affirmed where defendant’s sentence did not violate the eighth amendment to the United States Constitution or the proportionate penalties clause of the Illinois Constitution under Miller v. Alabama,

(2012), and its progeny because defendant was 24 years old at the time of the offense.

¶2 Defendant Kenneth Gholston appeals the circuit court’s denial of his motion for leave to

file a successive petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West No. 1-20-0188

2018)). Defendant’s proposed successive postconviction petition argued his 120-year prison

sentence violates the eighth amendment to the United States Constitution and the proportionate

penalties clause of the Illinois Constitution under Miller v. Alabama,

(2012), and

related authority holding that juveniles and certain young adults cannot be sentenced to life in

prison unless the sentencing court considers factors regarding youthful behavior and brain

development. We affirm.

¶3 Defendant and eight codefendants were charged with rape (Ill. Rev. State. 1979, ch. 38,

par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3), two counts of indecent

liberties with a child (Ill. Rev. Stat. 1979, ch. 38, pars. 11-4(a)(1),(2)), two counts of robbery (Ill.

Rev. Stat. 1979, ch. 38, par. 18-1), five counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38,

pars. 12-4(a), (b)(9)), and two counts of conspiracy to commit robbery (Ill. Rev. Stat. 1979, ch. 38,

par. 8-2, 18-1). As defendant only challenges the denial of leave to file a successive postconviction

petition attacking his sentence, we recite only those facts necessary to decide this appeal.

¶4 During a pretrial hearing on June 4, 1981, defendant testified he would be 25 years old the

following day, June 5, 1981.

¶5 At trial, the evidence established 15-year-old D.T. and her friends Matthew Kennedy and

Richard Fink were on the platform of a Chicago Transit Authority (CTA) train station at

approximately 11:40 p.m. on December 27, 1980, when a group of four to five young men attacked

and robbed Kennedy and Fink. During this attack, defendant, whom D.T. and Fink identified in

court, approached her with another group of men and touched her breasts. The men removed D.T.’s

clothing and pushed her down to the platform.

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¶6 Defendant raped D.T. while the other men threatened to kill her unless she stayed quiet.

He also attempted to rape her anally. Four of the codefendants then raped D.T. vaginally and orally

on the platform. A fifth codefendant threw D.T. onto the train tracks, dragged her into the snow,

and raped her. Police arrived shortly thereafter and arrested several of the codefendants on a CTA

train. Defendant escaped but turned himself in approximately three weeks later and was arrested.

In a statement to an assistant State’s Attorney, defendant admitted participating in the robbery but

denied raping D.T.

¶7 The jury found defendant guilty of rape, deviate sexual assault, one count of indecent

liberties with a child, two counts of robbery, three counts of aggravated battery, and one count of

conspiracy to commit robbery.

¶8 At the sentencing hearing, D.T. testified she began suffering from genital herpes

approximately one week after this incident. In aggravation, the State argued this offense was “one

of the most vicious attacks ever performed on an individual in the City of Chicago.” The State

characterized defendant as “the main actor,” “the most vicious of the group,” and “the person that

initiated the sexual attack upon [D.T.]” The State also argued defendant’s presentence

investigation report (PSI) established he had been on parole for fewer than five weeks at the time

of this offense and had “other prior convictions *** throughout the course of his adult life.” 1

¶9 In mitigation, defendant conceded his PSI was “a very bad story indeed,” but argued he

was “an impulsive person,” “economically deprived,” “socially backward,” “rash,” and “possibly

psychotic.” Defendant did not graduate from grade school or attend high school. He was addicted

to heroin for 7 years, used cannabis for 15 years, and became an alcoholic upon his release from

1 Defendant’s PSI is not included in the record on appeal.

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prison in 1980. Defendant requested a behavioral clinical examination, which was denied. In

allocution, defendant denied committing any crime.

¶ 10 The trial court sentenced defendant to a total of 258 years’ imprisonment as follows: 60

years for rape, 60 years for deviate sexual assault, 30 years each for two counts of indecent liberties

with a child, 14 years each for two counts of robbery, and 10 years each for five counts of

aggravated battery, all sentences to be served consecutively. 2 The court explained it imposed the

most serious penalty on defendant because he was “the leader in this event” and was “a danger to

society [who] should never again be permitted to walk as a free man in this community.”

¶ 11 On direct appeal, defendant challenged being tried with one of his codefendants, the

admission of certain testimony, and whether the trial court considered his rehabilitative potential

in passing sentence. People v. Gholston,

(1984). We affirmed

defendant’s convictions but held he could not receive a sentence greater than the sum of the two

most serious felonies pursuant section 5-8-2 of the Unified Code of Corrections (Ill. Rev. Stat.

1979, ch. 38, par. 1005-8-4(c)(2)).

. Thus, we modified defendant’s sentence to

provide for two consecutive terms of 60 years each for rape and deviate sexual assault for a total

sentence of 120 years.

.

¶ 12 In 1987, defendant filed his initial pro se postconviction petition, which alleged ineffective

assistance of trial and appellate counsel, challenged the format of his trial on due process grounds

and the admission of certain evidence, and argued his sentences were excessive. In 1993,

defendant, through counsel, filed a motion to compel DNA testing of D.T.’s vaginal swabs and, in

2 This calculation is based on defendant’s original mittimus. Gholston,

, 882 n. 3 (1984).

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1995, defendant supplemented his postconviction petition with the same request for DNA testing.

The circuit court denied and dismissed defendant’s original and supplemental petitions and we

affirmed. People v. Gholston,

(1998).

¶ 13 In 1999, defendant filed a second pro se postconviction petition, which again sought DNA

testing and argued counsel on direct appeal was ineffective. The circuit court summarily dismissed

this postconviction petition. We affirmed and rejected defendant’s attempt to challenge his

sentences under Apprendi v. New Jersey,

(2000), for the first time on appeal. People

v. Gholston, No. 1-99-3211 (2001) (unpublished order under Supreme Court Rule 23).

¶ 14 In 2004, defendant filed a third pro se postconviction petition, which challenged his

sentences and argued ineffective assistance of counsel during the appeal of his initial

postconviction petition. The circuit court dismissed this petition and we affirmed, granting

appointed appellate counsel leave to withdraw under Pennsylvania v. Finley,

(1987).

People v. Gholston, No. 1-04-3319 (2005) (unpublished order under Supreme Court Rule 23).

¶ 15 In 2007, defendant filed a pro se petition for relief from judgment under section 2-1401 of

the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), arguing his sentences were void.

The circuit court dismissed this petition and we affirmed, granting appointed appellate counsel

leave to withdraw under Finley. People v. Gholston, No. 1-08-0349 (2009) (unpublished order

under Supreme Court Rule 23).

¶ 16 In 2013, defendant filed a fourth pro se postconviction petition, which argued his

convictions for rape and deviate sexual assault violated the one-act, one-crime rule of People v.

King,

(1977). The circuit court denied leave to file this successive postconviction

petition. We affirmed but corrected the mittimus to reflect the modification to defendant’s

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sentences that occurred on direct appeal. People v. Gholston, No. 1-14-0634 (2015) (unpublished

summary order under Supreme Court Rule 23).

¶ 17 In 2014, defendant filed a pro se petition for habeas corpus relief, which again argued his

convictions violated the one-act, one crime rule. The circuit court dismissed this petition for failure

to provide proof of service.

¶ 18 In 2015, defendant filed a second pro se 2-1401 petition, challenging his sentences under

Alleyne v. United States,

(2013). The circuit court denied this petition and we affirmed,

granting appointed appellate counsel leave to withdraw under Finley. People v. Gholston, No. 1-

16-1207 (2018) (unpublished summary order under Supreme Court Rule 23)

¶ 19 In 2018, defendant filed a pro se petition for DNA testing under section 116-3 of the Code

of Criminal Procedure (725 ILCS 5/116-3 (West 2016)), which the circuit court denied.

¶ 20 In 2019, defendant filed a pro se motion for leave to file his fifth postconviction petition,

which is at issue here. Defendant argued his aggregate 120-year sentence violates the eighth

amendment to the United States Constitution and the proportionate penalties clause of the Illinois

Constitution under Miller and its progeny. Defendant proceeded under the cause-and-prejudice

test. As his cause for not raising these claims earlier, he cited recent developments in Illinois

caselaw, specifically People v. House,

, which he argued extended Miller

protections against life sentences to “Young Adults” like himself under the proportionate penalties

clause of the Illinois Constitution. Defendant argued he was prejudiced because he received an

unconstitutional de facto life sentence. Defendant’s petition claims he was 21 years old at the time

of the offense, and an affidavit from a fellow inmate claims defendant said he was 19 years old at

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the time of the offense. Defendant attached to his petition several articles regarding young adult

criminal behavior and brain development.

¶ 21 The circuit court denied defendant leave to file his successive postconviction petition. The

court explained the Illinois Department of Corrections website and documents in the case file

established defendant was 24 years old at the time of the offense. Citing People v. Harris,

, the court concluded Miller’s eighth amendment-based analysis did not apply to defendant

because he was over 18 at the time of the offense. The court also rejected defendant’s proportionate

penalties argument, distinguished House, and explained the articles defendant attached to his

petition did not establish anything about his specific circumstances at the time of the offense.

¶ 22 Defendant filed a motion to reconsider, which was denied.

¶ 23 We allowed defendant to file a late notice of appeal.

¶ 24 On appeal, defendant argues the circuit court should have allowed him to file his successive

postconviction petition because he met the cause and prejudice test. Specifically, defendant

contends his “de facto life sentence violates the proportionate penalties clause of the Illinois

Constitution, where the sentencing hearing failed to comply with the requirements of Miller and

its progeny and [his] pleading established he was entitled to develop a record to establish whether

he was entitled to Miller protections at age 24.” He requests we remand for resentencing.

¶ 25 The Post-Conviction Hearing Act (725 ILCS 5/121-1 et seq. (West 2018)) provides a

remedy to a criminal defendant whose federal or state constitutional rights were substantially

violated at trial. People v. Dupree,

, ¶ 28. The Act contemplates only one

postconviction proceeding per defendant. 725 ILCS 5/122-1(f) (West 2018); People v. Robinson,

. However, a defendant may bring a successive postconviction petition where,

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as relevant here, he asserts “cause and prejudice” for not raising the claim earlier. People v. Davis,

; 725 ILCS 5/122-1(f) (West 2018). “Cause” means an objective, external

factor that impeded the defendant’s ability to raise the claim in an earlier proceeding. Davis,

. “Prejudice” means a constitutional error that “so infected the entire trial that the

resulting conviction violates due process.”

A defendant must satisfy both prongs to prevail.

¶ 26 A defendant seeking leave to file a successive postconviction petition must make a prima

facie showing of cause and prejudice. People v. Bailey,

. We take as true all

well-pleaded facts in the petition and accompanying documentation unless they are positively

rebutted by the record. People v. Towns,

(1998). The circuit court should deny

leave to file a successive postconviction petition when it is clear the defendant’s claims fail as a

matter of law. People v. Smith,

. We review a circuit court’s denial of leave

to file a successive postconviction petition de novo. Bailey,

.

¶ 27 Defendant’s postconviction claim is premised on the United States Supreme Court’s

decision in Miller and the resulting line of federal and state cases. In Miller, the Court held a

juvenile defendant cannot be sentenced to mandatory life without parole if the sentencing court

does not give special consideration to factors related to the defendant’s youth. Miller,

. Such a sentence violates the eighth amendment’s prohibition on cruel and unusual

punishments.

The Miller Court based its reasoning on “ ‘developments in psychology and brain

science continu[ing] to show fundamental differences between juvenile and adult minds’ – for

example, in ‘parts of the brain involved in behavior control.’”

at 471-72 (quoting Graham v.

Florida,

(2010)).

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¶ 28 The Supreme Court of Illinois has held any prison sentence imposed upon a juvenile

defendant that is longer than 40 years is a de facto life sentence to which Miller applies. People v.

Buffer,

. Miller applies to both mandatory and discretionary juvenile life

sentences. People v. Holman,

. Miller also applies retroactively in a

postconviction challenge to a juvenile offender’s life sentence. Davis,

.

¶ 29 Our supreme court has held a defendant who was 18 years of age or older at the time of the

offense cannot raise a Miller claim asserting a facial eighth amendment challenge to a life sentence

because “the age of 18 is the legal line separating adults from juveniles.” Harris,

. That is, Miller and its progeny do not apply directly to defendants aged 18 or older. Id.

¶ 45.

¶ 30 However, recent authority indicates a defendant who was 18 to 21 years old at the time of

the offense can raise an as-applied Miller challenge to a life sentence under the proportionate

penalties clause of the Illinois Constitution in a postconviction petition. See, e.g., Id. ¶ 48; People

v. Thompson,

. When a defendant claims the evolving science discussed in

Miller applies to him as a young adult between 18 and 21, the circuit court is the most appropriate

tribunal for factual development. Holman,

. “The record must be

developed sufficiently to address [the] defendant’s claim that Miller applies to his particular

circumstances.” Harris,

.

¶ 31 We find defendant cannot establish prejudice because Miller and its progeny do not apply

to him as a 24-year-old at the time of the offenses. The parties agree defendant was 24 years old

at the time of the offense and the record supports that conclusion. At a hearing on June 4, 1981,

defendant testified he would be “25 tomorrow,” making June 5, 1956, his date of birth. Defendant’s

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criminal history, which is in the record on appeal, also indicates his date of birth is June 5, 1956.

The Illinois Department of Corrections website, upon which the circuit court relied, indicates

defendant’s date of birth is May 5, 1956. Regardless of whether defendant was born in May or

June 1956, he was 24 years old at the time of the offenses on December 27, 1980.

¶ 32 The eighth amendment protections of Miller do not apply to defendant because he was over

18 at the time of the offense. See Id.; People v. Minniefield,

(the

“categorical findings made by Miller and its progeny under the federal eighth amendment do not

apply to” defendants over 18 at the time of the offense). Moreover, because he was 24 years old at

the time of the offenses, defendant is “well past both the juvenile cutoff for eighth amendment

Miller-based claims and the 18-to-21-year-old group of defendants who have asserted as-applied

Miller-based claims under the proportionate penalties clause.” See People v. Robinson,

(not yet released for publication and subject to revision or withdrawal)

(finding Miller protections did not apply to offender who was 24 years old at the time of the

offense). No authority supports extending Miller protections under the proportionate penalties

clause to a defendant who was 24 years old at the time of the offense. Indeed, this court recently

explained any extension of Miller principles to defendants over 21 “should be made by our

legislature or our highest court.” People v. Rivera,

(not yet released

for publication and subject to revision or withdrawal). No such extension has yet occurred. Thus,

defendant’s Miller claims fail as a matter of law, and the circuit court properly denied him leave

to file a successive postconviction petition.

¶ 33 Defendant contends “the protections of the proportionate penalties clause reserved for

youthful offenders can extend to defendants over the age of 18.” However, the cases he cites do

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not support the extension of Miller protections to defendants who were 24 years old at the time of

the offense, as he was. See, e.g., People v. Lenoir,

(18-year-old

defendant); People v. Franklin,

(18-year-old defendant); People v.

Ruiz,

(18-year-old defendant); People v. House,

, ¶ 17 (19-year-old defendant).3

¶ 34 People v. Savage,

, appears to be the only reported decision

extending Miller protections to a defendant older than 21. The Savage court relied on the fact the

defendant, who was 21 years and 7 months old at the time of the offense, had been addicted to

drugs since he was 9 years old and was using drugs daily at the time of the offense. Savage,

(not yet released for publication and subject to revision or

withdrawal). Savage does not support the extension of Miller protections to a 24-year-old like

defendant in this case, and cases decided after Savage have rejected extending Miller protections

to defendants older than 21. See, e.g., Robinson,

; People v.

Williams,

(not yet released for publication and subject to revision

or withdrawal). Accordingly, the circuit court properly denied defendant leave to file his

successive postconviction petition.

¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 36 Affirmed.

3 House, upon which defendant relies heavily, is currently on appeal before our supreme court. People v. House,

(table) (allowing petition for leave to appeal).

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