FIFTH DIVISION June 8, 2007
Nos. 1-05-2377 & 1-05-3244 (consolidated)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) THEODORE LUCZAK, ) ) Honorable Defendant-Appellant. ) John J. Mannion and ) Marjorie C. Laws, ) Judges Presiding.
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
On February 2, 1990, defendant pled guilty to one count of aggravated criminal sexual
assault and one count of criminal sexual assault charged under No. 89 CR 6782, two counts of
criminal sexual assault under No. 89 CR 6783, and two counts of criminal sexual assault under
No. 89 CR 6784. The trial court sentenced defendant to concurrent terms of incarceration of 10
years in No. 89 CR 6782; 6 years in No. 89 CR 6783; and 6 years in No. 89 CR 6784.
After serving these concurrent sentences, defendant was charged under indictment No. 95
CR 14118, with aggravated criminal sexual assault, criminal sexual assault, aggravated
kidnaping, and unlawful restraint. A jury found defendant guilty of two counts of aggravated
criminal sexual assault and he was sentenced to consecutive prison terms of 60 and 40 years.
Defendant appealed these convictions, arguing that the trial court erred in allowing evidence of 1-05-2377 & 1-05-3244 (consolidated)
one of his prior crimes of sexual assault. This court affirmed his conviction and held that the
prior crime evidence was relevant to defendant’s intent and modus operandi. People v. Luczak,
306 Ill. App. 3d 319, 326-27 (1999), appeal denied, 185 Ill. 2d 650 (1999), cert. denied, 528 U.S.
1164, 145 L. Ed. 2d 1088, 120 S. Ct. 1182 (2000).
In June of 1999, defendant filed a pro se post-conviction petition seeking an order,
pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West
2004)) to allow DNA testing of evidence in connection with his trial for case No. 95 CR 14118.
On July 7, 1999, the trial court denied this petition, explaining that defendant could have raised
the issue of DNA testing during direct appeal but did not, and thus, the petition was untimely and
without merit. Defendant did not appeal. On March 27, 2000, defendant filed a successive post-
conviction petition alleging several issues including ineffective assistance of appellate counsel
and due process violations. He did not request any relief under the DNA statute as he had
requested previously. This petition was also denied, and defendant filed a timely notice of
appeal. On appeal, this court, on June 25, 2001, affirmed the judgment of the trial court. People
v. Luczak, No. 1-00-1645 (2001) (unpublished order under Supreme Court Rule 23). The
mandate issued on November 5, 2001.
In May 2001, defendant filed another pro se motion to vacate a void judgment in which
he argued that his consecutive extended-term sentences were unconstitutional in light of the
principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.
2348 (2000). The trial court ruled that Apprendi did not apply to recidivism or consecutive
sentencing and denied defendant’s motion and this court affirmed. People v. Luczak, No. 1-01-
2 1-05-2377 & 1-05-3244 (consolidated)
3197 (2003) (unpublished order under Supreme Court Rule 23).
In September 2002, defendant filed a habeas corpus petition alleging that his indictment
in No. 95 CR 14118 was faulty and that the court could not have entered a valid judgment. The
trial court denied that petition on October 22, 2002, and on appeal this court granted counsel’s
motion to withdraw pursuant to Finley (Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539,
107 S. Ct. 1990 (1987)) and affirmed the trial court’s decision. Luczak v. Mote, No. 1-03-0005
(2004) (unpublished order under Supreme Court Rule 23).
On January 10, 2005, defendant filed a motion, pursuant to section 116-3 (725 ILCS
5/116-3 (West 2004)), to permit DNA testing on evidence used in his trial under No. 95 CR
14118. Defendant also filed a pro se petition which he labeled as a “Petition for a Writ of
Habeas Corpus Ad Testificandum” seeking to appear in court and argue the motion. The court
denied both the habeas corpus petition and the section 116-3 motion.
On February 14, 2005, defendant filed a motion for free transcripts, alleging that he
would be seeking to withdraw his guilty pleas from his convictions in Nos. 89 CR 6782, 89 CR
6783, and 89 CR 6784. Those guilty pleas were entered on February 2, 1990. On July 1, 2005,
defendant filed his motion to withdraw his guilty pleas from these convictions. In July of 2005,
defendant was granted leave to file a late notice of appeal from the 1990 guilty pleas.
Defendant presents this court with consolidated appeals seeking review of (1) the denial
of his 2005 section 116-3 motion for DNA testing as related to his convictions under No. 95 CR
14118; (2) the denial of his petition for writ of habeas corpus; and (3) the denial of his motion for
free transcripts from his cases previously resolved by pleas of guilty on February 2, 1990. The
3 1-05-2377 & 1-05-3244 (consolidated)
factual basis for defendant’s convictions under No. 95 CR 14118 is fully discussed in People v.
Luczak, 306 Ill. App. 3d 319 (1999), and will only be repeated as needed to resolve the instant
case. We address each issue in turn.
I. SECTION 116-3 DNA MOTION
Defendant contends that the trial court erred in dismissing his section 116-3 motion
seeking DNA testing on evidence introduced at his trial under No. 95 CR 14118. In support of
that contention, defendant argues that (1) the court relied upon an order from the appellate court
that did not exist; and (2) the court erred in treating defendant’s motion for DNA testing as a
post-conviction petition and summarily dismissing the motion. A trial court’s dismissal of a
motion seeking DNA testing under section 116-3 is reviewed de novo. People v. Price, 345 Ill.
App. 3d 129, 133 (2003). De novo review “is appropriate because the trial court’s decision on
such a motion is necessarily based upon a review of the pleadings and trial record and is not
based on an assessment of the credibility of witnesses.” Price, 345 Ill. App. 3d at 133.
Section 116-3 provides as follows:
“(a) A defendant may make a motion before the trial court
that entered the judgment of conviction in his or her case for the
performance of fingerprint or forensic DNA testing, including
comparison analysis of genetic marker groupings of the evidence
collected by criminal justice agencies pursuant to the alleged
offense, to those of the defendant, to those of other forensic
evidence, and to those maintained under subsection (f) of Section
4 1-05-2377 & 1-05-3244 (consolidated)
5-4-3 of the Unified Code of Corrections, on evidence that was
secured in relation to the trial which resulted in his or her
conviction, but which was not subject to the testing which is now
requested because the technology for the testing was not available
at the time of trial. Reasonable notice of the motion shall be
served upon the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which resulted
in his or her conviction; and
(2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not been
substituted, tampered with, replaced, or altered in any
material aspect.
(c) The trial court shall allow the testing under reasonable
conditions designed to protect the State’s interests in the integrity
of the evidence and the testing process upon a determination that:
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence
materially relevant to the defendant’s assertion of actual
innocence even though the results may not completely
exonerate the defendant;
5 1-05-2377 & 1-05-3244 (consolidated)
(2) the testing requested employs a scientific
method
generally accepted within the relevant scientific
community.” 725 ILCS 5/116-3 (West 2004).
Section 116-3 permits a defendant to make a motion for DNA testing “on evidence that
was secured in relation to the trial which resulted in his or her conviction, but which was not
subject to the testing which is now requested because the technology for the testing was not
available at the time of trial.” 725 ILCS 5/116-3(a) (West 2004). In order to present a prima
facie case for DNA testing, “the defendant must show that identity was the central issue at trial
and that the evidence to be tested was subject to a sufficiently secure chain of custody.” People
v. Johnson, 205 Ill. 2d 381, 393 (2002). If defendant demonstrates a prima facie case then the
trial court must determine whether DNA testing will potentially produce new, noncumulative
evidence that is materially relevant to the defendant’s actual-innocence claim. Johnson, 205 Ill.
2d at 393.
A. DNA Motion Properly Dismissed As Res Judicata
The doctrine of res judicata bars consideration of issues that have been previously raised
and adjudicated. People v. Blair, 215 Ill. 2d 427, 443 (2005); People v. Williams, 138 Ill. 2d
377, 392 (1990). Defendant argues that Judge Laws erred in denying his DNA motion because
she mistakenly believed the appellate court had previously resolved the DNA issue and as a
result concluded that his 2005 DNA motion was barred by res judicata.
On June 30, 1999, defendant in a pro se post-conviction petition sought to obtain an order
6 1-05-2377 & 1-05-3244 (consolidated)
to allow DNA testing of evidence used in the trial of case No. 95 CR 14118. On July 7, 1999,
that post-conviction petition was denied by Judge Fiala. Defendant did not appeal. Defendant
filed another pro se post-conviction petition on March 27, 2000, which was denied by Judge
Fiala on April 6, 2000. Defendant appealed and raised several issues; however, neither the
March 2000 petition nor the appeal from its denial raised any DNA issues. On appeal, dismissal
of the second pro se petition was affirmed. People v. Luczak, No. 1-00-1645 (2001)
(unpublished order under Supreme Court Rule 23).
On January 10, 2005, defendant filed a pro se section 116-3 motion to obtain DNA
testing of the evidence used in the trial of case No. 95 CR 14118. Defendant also filed a pro se
petition for writ of habeas corpus in connection with the DNA motion. In resolving the DNA
motion, Judge Laws noted that Judge Fiala, on July 7, 1999, had previously denied a motion to
allow DNA testing; accordingly, she denied the motion because it had already been decided by
Judge Fiala. She mistakenly indicated that this previous ruling by Judge Fiala had been affirmed
on November 7, 2001, by the appellate court, unaware that defendant had not in fact appealed
Judge Fiala’s denial of his 1999 post-conviction petition seeking DNA testing. She, however,
further correctly noted that section 116-3 required identity to be an issue at the time of trial in
order to apply. In support of denying defendant’s 2005 DNA motion, she noted that identity was
not an issue during the trial of case No. 95 CR 14118 and indicated as follows:
“It appears that the defendant filed the same motion on June
22nd of 1999, a motion to allow DNA testing. Judge Fiala
dismissed that motion, it appears, on July 7th of 1999 finding that
7 1-05-2377 & 1-05-3244 (consolidated)
the petition was untimely, without merit, and denied it accordingly.
Judge Fiala’s finding was affirmed by the Appellate Court on
November 7th of 2001.
I will again deny the motion for DNA testing. It’s an issue
that has already been decided by Judge Fiala and affirmed by the
Appellate Court.
I must add that the defendant has filed this motion under
725 ILCS 5/116-3. One of the requirements is that identity is an
issue at the time of trial.
I have reviewed the findings by the Appellate Court in the
defendant’s case filed November 15th of 1999, and it does not
appear that identity was an issue in this matter and that the
defendant testified at his own trial that he was with the victim;
although, he disagreed that, in fact, he had sexually assaulted the
victim.
So I don’t believe that he has even met the criteria for 725
ILCS 5/116-3. I’ll ask the clerk to notify the defendant of my
decision. Motion is denied.
And the defendant’s Petition for Writ of Habeas Corpus
Relief in that he wants to appear in court for the hearing on the
matter is also denied, and the matter is taken off call.”
8 1-05-2377 & 1-05-3244 (consolidated)
The record reflects that Judge Fiala, on July 7, 1999, denied a DNA motion made in
connection with defendant’s pro se petition filed by defendant in June 1999. Defendant did not
appeal that ruling; accordingly, Judge Laws was mistaken when she indicated Judge Fiala’s
ruling was affirmed by the appellate court. However, that mistaken belief in no way changed the
fact that defendant in 1999 sought DNA testing in connection with his post-conviction petition
which was considered by Judge Fiala and denied by Judge Fiala in 1999. Judge Laws was not
mistaken when she noted that defendant had previously brought the same issue before Judge
Fiala in 1999. Thus, the record reflects that Judge Laws correctly denied defendant’s 2005 DNA
motion because the same issue had already been decided by Judge Fiala in 1999 and accordingly
was barred by the principles of res judicata.
B. Summary Dismissal of DNA Motion Was Not Reversible Error
Defendant further argues that his 2005 DNA motion was not properly dismissed by Judge
Laws because the “subject motion of January 2005 was brought under section 5/116 (725 ILCS
5/116-3 (West 2000)) Motion for DNA Testing, while the June, 1999 filing was made pursuant
to the Post Conviction Hearing Act (Act) (725 ILCS 5/122 (West 2000)).” He argues that these
“are two separate statutes enumerating separate classes[,] statutory rights.” Essentially,
defendant contends that the ruling by Judge Laws denying defendant’s DNA motion was in error
because she treated his DNA motion like a post-conviction petition and then summarily
dismissed it. In support of his position, defendant argues “the Illinois Supreme Court in People
v. Shellstrom, 216 Ill. 2d 45, 52-57 (2005), and People v. Pearson, 216 Ill. 2d 58, 66-67 (2005),
9 1-05-2377 & 1-05-3244 (consolidated)
held that the recharacterization of a pleading of a pro se litigant as a successive post-conviction
petition prior to dismissal of such petition, without notice and warning to the defendant, and
without affording the defendant an opportunity to withdraw or amend the pleading, is reversible
error.”
We disagree with defendant’s characterization of the resolution of the motion by Judge
Laws. Judge Laws noted that defendant filed the same motion in June of 1999, a motion to allow
DNA testing. However, further during her discussion she specifically indicated her recognition
of the fact that the 2005 DNA motion at issue in the instant case was filed under section 116-3.
She stated: “I must further add that the defendant has filed this motion under 725 ILCS 5/116-3.”
She then accurately discussed the specific requirements imposed by the DNA statute including
the fact that “identity is an issue at the time of trial.” Mindful of the requirements of the DNA
statute, she accurately referenced in substance the appellate court case from 1999 affirming
defendant’s conviction (People v. Luczak, 306 Ill. App. 3d 319 (1999)), and she concluded: “I
have reviewed the findings by the Appellate Court in the defendant’s case filed November 15th
of 1999, and it does not appear that identity was an issue in this matter and that the defendant
testified at his own trial that he was with the victim; although, he disagreed that, in fact, he had
sexually assaulted the victim.”
The record reflects that Judge Laws was well aware of the fact that the motion at issue in
the instant case was not made in connection with a post-conviction petition but, rather, was a
DNA motion under section 116-3. We reject defendant’s argument that Judge Laws
recharacterized his DNA motion as a post-conviction petition. The DNA statute specifically
10 1-05-2377 & 1-05-3244 (consolidated)
provides for the DNA motion to be brought by the defendant before the trial court that entered
judgment of conviction, which is exactly what the defendant did in this case. 715 ILCS 5/116-
3(a) (West 2004). Judge Laws specifically referenced the DNA statute. Under that statute,
before the trial court shall consider whether to allow DNA testing, the defendant must present a
prima facie case that identity was the issue in the trial and that the evidence has been subject to a
sufficient chain of custody. Johnson, 205 Ill. 2d at 393; 725 ILCS 5/116-3(b)(1), (b)(2) (West
2004). The record reflects that Judge Laws was well aware of the law and correctly applied it in
resolving defendant’s section 116-3 DNA motion. Substantively, the dismissal of the
defendant’s DNA motion was proper because it was barred by the principles of res judicata and
the record precluded defendant from presenting a prima facie case that identity was the issue in
the trial.
However, defendant also procedurally challenges the summary dismissal of the DNA
motion as reversible error relying on People v. O’Connell, 365 Ill. App. 3d 872 (2006), appeal
allowed, 221 Ill. 2d 662 (2006). Defendant argues that O’Connell “held that summary dismissal
of a motion for evidentiary DNA testing is illegal.” The court in O’Connell noted that section
116-3, like section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)),
confers a limited right to challenge a conviction and lacks any express procedural provisions.
Relying on People v. Dyches, 355 Ill. App. 3d 225, 229 (2005), the court in O’Connell refused to
read special summary dismissal procedures into section 116-3 and concluded that “[t]he trial
court must, at a minimum, provide notice to the defendant of its sua sponte motion to dismiss,
and the court must give the defendant an opportunity to respond.” O’Connell, 365 Ill. App. 3d at
11 1-05-2377 & 1-05-3244 (consolidated)
877. However, the court further held that “harmless error analysis applies to the summary
dismissal of a post-conviction petition for DNA testing of evidence.” O’Connell, 365 Ill. App.
3d at 877.
We agree with O’Connell’s recognition of the need for the trial court to provide notice to
defendant and give the defendant an opportunity to be heard before summarily dismissing a DNA
petition. We also agree with O’Connell that the harmless error analysis applies to summary
dismissal of a DNA petition. We are well aware, for the reasons previously discussed, that in the
instant case, defendant’s DNA motion under section 116-3 was not recharacterized by the trial
court as a post-conviction petition. Moreover, the DNA motion was not brought in connection
with section 2-1401. Cases previously recognizing the need for the court to provide defendant
notice and an opportunity to be heard have done so in the context of resolving a section 2-1401
petition (Dyches, 355 Ill. App. 3d 225) or post-conviction petition (People v. Sargent, 352 Ill.
App. 3d 946 (2005)).
We conclude, however, that it is similarly unfair to a defendant, when faced with a
proposed sua sponte summary dismissal of a section 116-3 motion, to be deprived of notice and
an opportunity to be heard. We recognize that summary dismissal procedures not provided by
the DNA statute can deprive defendant of notice and an opportunity to be heard which are
fundamental principles of justice. See People v. Anderson, 352 Ill. App. 3d 934, 942 (2004).
We hold that summary dismissal, which is a drastic procedure, should not be read into section
116-3; accordingly, a defendant is entitled to notice and an opportunity to be heard regarding a
section 116-3 DNA motion.
12 1-05-2377 & 1-05-3244 (consolidated)
We recognize that our holding is consistent with the principals articulated in Dyches, 355
Ill. App. 3d at 229, but conflicts with the Fourth District’s holding in People v. Stevens, 315 Ill.
App. 3d 781 (2000). In Stevens, the trial court summarily dismissed the defendant’s motion for
post-conviction DNA testing under section 116-3. In discussing section 116-3, the court in
Stevens stated as follows:
“Section 116-3 does not state that a defendant is entitled to
a hearing. Under defendant’s interpretation of the statute, a trial
court must hold a hearing on every motion regardless of the merits
of the motion. Courts will not interpret a statute to guarantee a
hearing as a matter of right without such language in the statute.
[Citations.] We conclude that defendant was not entitled to a
hearing as a matter of right and the trial court properly denied
defendant’s motion.” Stevens, 315 Ill. App. 3d at 784.
The court in Stevens affirmed the denial of defendant’s motion “because (1) section 116-
3 of the Code does not require that the trial court conduct a hearing on defendant’s petition, (2)
identity was not the issue in the trial that resulted in defendant’s conviction, and (3) the blood he
sought to have tested would not produce new, noncumulative evidence materially relevant to
defendant’s assertion of actual innocence.” Stevens, 315 Ill. App. 3d at 784.
In Dyches, 355 Ill. App. 3d at 229, we recognized the need for the court to provide a
defendant notice and an opportunity to be heard in the context of a section 2-1401 petition. We
held that “summary dismissal, which is a drastic procedure, should not be read into the
13 1-05-2377 & 1-05-3244 (consolidated)
procedures provided by section 2-1401.” Dyches, 355 Ill. App. 3d at 229. However, we further
held that “harmless error analysis should still be applied where defects in a section 2-1401
petition are patently incurable.” Dyches, 355 Ill. App. 3d at 229.
Similar to Dyches, harmless error analysis should apply where defects in a section 116-3
DNA motion are patently incurable. If dismissal of the DNA motion is inevitable and further
proceedings would have little remedial effect and only delay dismissal, then summary dismissal
should be affirmed based on harmless error. See Anderson, 352 Ill. App. 3d at 948 (summary
dismissal of a section 2-1401 petition is subject to harmless error analysis); see Sargent, 352 Ill.
App. 3d 946 (reiterated Anderson’s holding that summary dismissal, even if regarded as
procedurally erroneous, remains subject to harmless error analysis, although Sargent addressed
summary dismissal of a post-conviction petition, not summary dismissal of a section 2-1401
petition). We believe our application of the harmless error analysis in the context of a section
116-3 DNA motion is consistent with the general duty of the reviewing court to consider the
record as a whole and ignore harmless errors. See Dyches, 355 Ill. App. 3d at 229 (“harmless
error analysis should still be applied where defects in a section 2-1401 petition are patently
incurable”).
As previously noted, the court in O’Connell similarly recognized that harmless error
analysis applies to the summary dismissal of a DNA post-conviction petition. O’Connell, 365 Ill.
App. 3d at 877 (“following Dyches, we further hold that harmless error analysis applies to the
summary dismissal of a post-conviction petition for DNA testing of evidence”). In O’Connell,
the trial court dismissed the DNA post-conviction petition because defendant pled guilty to the
14 1-05-2377 & 1-05-3244 (consolidated)
charges, and therefore, the court reasoned, he could not meet the statutory requirement of
showing that “identity was the issue in the trial.” 725 ILCS 5/116-3(b)(1) (West 2004).
However, in O’Connell, after considering the record as a whole, based on the underdeveloped
nature of the record, the appellate court indicated that it could not conclude that any error in
denying the DNA post-conviction petition was harmless:
“This court and the trial court could both benefit from a fuller
development of the arguments concerning interpretation of section
116-3. Because we cannot conclude that the procedural defects
had no prejudicial effect, we reverse and remand for proper notice
of the court’s sua sponte motion to dismiss and to give defendant
an opportunity to respond to the dispositive motion.” O’Connell,
365 Ill. App. 3d at 878.
Thus, O’Connell recognized application of the harmless error analysis, but found the record in
that particular case did not allow it to affirm the dismissal of the DNA post-conviction petition
because the court could not conclude that any error in denying the DNA petition was in fact
harmless error.
We are mindful that the O’Connell case is currently under consideration by the Illinois
Supreme Court. People v. O’Connell, 365 Ill. App. 3d 872 (2006), appeal allowed, 221 Ill. 2d
662 (2006). We take no position on whether any error in denying the DNA petition in the
context of the plea of guilty at issue in O’Connell was in fact harmless, as that is currently under
consideration by the supreme court and not relevant to the issue in the instant appeal. O’Connell,
15 1-05-2377 & 1-05-3244 (consolidated)
365 Ill. App. 3d at 877. Rather, we rely on O’Connell only for the specific principle that the
harmless error analysis can apply to the summary dismissal of a DNA petition. O’Connell, 365
Ill. App. 3d at 877.
We note that defendant, in relying on O’Connell, argues that “the Illinois Appellate Court
has held that summary dismissal of a motion for evidentiary DNA testing is illegal.” That
argument fails to take into consideration that while O’Connell recognizes summary dismissal
should not be read into section 116-3, O’Connell also recognizes that summary dismissal
depending on the record as a whole can be recognized as error, but affirmed if harmless error.
O’Connell, 365 Ill. App. 3d at 877.
In the instant case, for the reasons previously discussed, we review the record as a whole
and consider whether the summary dismissal of defendant’s section 116-3 DNA motion was
harmless error. Section 116-3 provides in pertinent part:
“(b) The defendant must present a prima facie case that
(1) identity was the issue in the trial which resulted in his or
her conviction.” 725 ILCS 5/116-3 (West 2004).
Defendant alleged in his motion that identity was the issue at trial. However, the well-developed
record in the instant case directly rebuts that allegation. Unlike the court in O’Connell, which
reviewed a record reflecting a defendant’s guilty plea, in the instant case, we review a far more
extensive record. Defendant brings the section 116-3 DNA motion as the result of his conviction
of two counts of aggravated criminal sexual assault after a fully litigated jury trial in case No. 95
CR 14118.
16 1-05-2377 & 1-05-3244 (consolidated)
On direct appeal of those two convictions, defendant argued that since he admitted to
having been with the victim, other crime evidence was not relevant to establish defendant’s
identity or intent. People v. Luczak, 306 Ill. App. 3d 319, 327 (1999). We affirmed his
conviction and held that the prior crime evidence was relevant to defendant’s intent and modus
operandi. Luczak, 306 Ill. App. 3d at 327.
Moreover, the record reflects, defendant, in an interview with the police before trial,
admitted to the police that he engaged in sex with the victim for money. Luczak, 306 Ill. App. 3d
at 322. Defendant, during trial, admitted being with the victim during the time frame when the
victim testified the sexual assault occurred; however, he denied having sexual contact with the
victim. Luczak, 306 Ill. App. 3d at 323. According to defendant’s testimony he was driving
around with the victim because she wanted to buy some cocaine and he helped get the cocaine
for her to purchase. Luczak, 306 Ill. App. 3d at 323. Defendant testified that an argument
occurred as a result of a dispute over the cost of the cocaine and defendant eventually kicked the
victim out of the car. Luczak, 306 Ill. App. 3d at 323.
In response to defendant’s argument on appeal that since he admitted to being with the
victim any evidence of other crimes was not relevant to identity or intent, we found other crime
evidence was not admissible to prove identity but, rather, to prove defendant’s intent and modus
operandi. Luczak, 306 Ill. App. 3d at 327. We affirmed defendant’s conviction. People v.
Luczak, 306 Ill. App. 3d 319, appeal denied, 185 Ill. 2d 650 (1999), cert. denied, 528 U.S. 1164,
145 L. Ed. 2d 1088, 120 S. Ct. 1182 (2000).
As previously noted, defendant, in June of 1999, filed a post-conviction petition seeking
17 1-05-2377 & 1-05-3244 (consolidated)
an order, pursuant to section 116-3, to allow DNA testing of evidence used in his trial. On July
7, 1999, the trial court denied this petition, explaining that defendant could have raised the issue
of DNA testing on direct appeal but did not, and thus, the petition was untimely and without
merit. That ruling was not appealed by defendant. On March 27, 2000, defendant filed a
successive post-conviction petition alleging various issues, but none of those issues were in any
way related to DNA testing. This petition was also denied, and on appeal, this court affirmed the
dismissal of the petition by the trial court. People v. Luczak, No. 1-00-1645 (2001) (unpublished
order under Supreme Court Rule 23).
In the instant case, defendant, in 2005, filed a motion pursuant to section 116-3 to permit
DNA testing on evidence related to his trial under No. 95 CR 14118. However, the record
reflects the inherent defect in defendant’s DNA motion is patently incurable. Judge Laws
summarily dismissed defendant’s motion noting as follows:
“One of the requirements is that identity is an issue at the time of
trial. I have reviewed the findings by the Appellate Court in the
defendant’s case filed November 15th of 1999, and it does not
appear that identity was an issue in this matter and that the
defendant testified at his own trial that he was with the victim;
although, he disagreed that, in fact, he had sexually assaulted the
victim.”
Both the trial and appellate record directly and repeatedly rebut the fact that identity was an issue
in the trial which resulted in defendant’s conviction. We find, in the instant case, that regardless
18 1-05-2377 & 1-05-3244 (consolidated)
of whether the circuit court erred in failing to provide defendant with notice and an opportunity
to be heard before summarily dismissing his section 116-3 DNA motion, defendant could not
have cured the inherent defect in his DNA motion because he could not allege, or present a prima
facie case that identity was the issue in the trial which resulted in his conviction as required by
section 116-3. 725 ILCS 5/116-3 (West 2004). The summary dismissal of the DNA motion was
inevitable and further proceedings would only have delayed the result. Accordingly, any
procedural error was harmless.
For the reasons previously discussed, dismissal of defendant’s DNA motion was proper
because it was barred by the principles of res judicata and the record precluded defendant from
presenting a prima facie case that identity was the issue in the trial which resulted in his
conviction. Moreover, any procedural error in summarily dismissing defendant’s DNA motion
was harmless error.
II. HABEAS CORPUS
Defendant’s third contention is that the trial court erred in dismissing his petition for writ
of habeas corpus. Defendant argues that the trial court summarily dismissed his petition in
violation of the Habeas Corpus Act (Act) (735 ILCS 5/10-101 et seq. (2002)). Whether the trial
court complied with the applicable statutory procedure is a question of law, and the standard of
review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998). Defendant cites to People v.
Winfrey, 347 Ill. App. 3d 987, 989 (2004), for the proposition that the trial court is not
authorized under the Act to summarily dismiss a habeas corpus petition.
We recognize a dispute among the districts of this court as to whether a trial court may
19 1-05-2377 & 1-05-3244 (consolidated)
summarily dismiss a defendant’s habeas corpus petition. Compare People v. Land, 366 Ill. App.
3d 1183, 1187 (4th Dist. 2006) (trial court has inherent authority to sua sponte dismiss habeas
corpus petition), People v. Tiller, 361 Ill. App. 3d 803, 806 (5th Dist. 2005) (affirming summary
dismissal of habeas corpus petition), and People v. Carroll, 351 Ill. App. 3d 972 (1st Dist. 2004)
(summary denial of habeas corpus petition is proper), with Winfrey, 347 Ill. App. 3d at 989 (2d
Dist. 2004) (dismissing habeas corpus petition without giving defendant notice and an
opportunity to respond to trial court’s action is reversible error).
In Carroll, this court summarily denied a habeas corpus petition where defendant did not
raise any legal argument or cite legal authority to support his claim under the Act and no
prejudice resulted from summary dismissal. Carroll, 351 Ill. App. 3d at 975. In recognizing the
dispute among the districts regarding summary dismissal, this court declined to follow the
Second District’s holding in Winfrey. Carroll, 351 Ill. 3d at 975.
We note under the Act, a prisoner is entitled to an immediate release from incarceration if
the term during which the prisoner may be legally detained has expired. 735 ILCS 5/10-123(2)
(West 2000). Additionally, the Act provides that a prisoner may be discharged where, although
the original imprisonment was lawful, some subsequent act, omission, or event has occurred
entitling the prisoner to a discharge. 735 ILCS 5/10-124(2) (West 2000).
Defendant pro se filed what he labeled a “Petition for a Writ of Habeas Corpus Ad
Testificandum.” His petition noted that on “December 22, 2004, defendant caused to be filed
Motion to allow DNA Testing and Discovery.” Defendant further alleged in his petition that his
case “depends in large part on his own testimony” and requested to be present to manage the
20 1-05-2377 & 1-05-3244 (consolidated)
presentation of his case. Specifically, defendant alleged that he “should have the legal right to
cross-examine any of the plaintiff’s witnesses, and to have the court hear his case and to present
appropriate rebuttal evidence.” Defendant’s petition does not identify any specific reason why he
is entitled to habeas corpus relief under the Act; however, he contends that the Act does not
allow summary dismissal.
Similar to the defendant in this case, the defendant in Carroll argued on appeal that the
Habeas Corpus Act did not allow summary dismissal of his petition. Carroll, 351 Ill. 3d at 974.
A review of the record reflects that defendant’s petition, like the petition in Carroll, did not raise
any legal issue cognizable under the Act, or raise any legal argument or legal authority to support
his claim; accordingly, no prejudice resulted from the dismissal.
As previously noted, the trial court did not recharacterize defendant’s pleading as a post-
conviction petition. See People v. Shellstrom, 216 Ill. 2d 45, 56 (2005) (in light of obstacles
associated with successive post-conviction petition, trial court must give a pro se petitioner
notice before recharacterizing a pleading as a first post-conviction petition). Defendant had
already filed successive post-conviction petitions which had been resolved prior to the DNA
motion and habeas corpus petition which were filed in the instant case. Rather than
recharacterize his petition, the trial court addressed the precise petition presented and the precise
relief requested by defendant and concluded that “the defendant’s Petition for Writ of Habeas
Corpus Relief in that he wants to appear in court for the hearing on the matter is also denied, and
the matter is taken off call.” That ruling directly addressed the relief requested in defendant’s
“Petition For Writ of Habeas Corpus Ad Testificandum,” specifically to be present to manage his
21 1-05-2377 & 1-05-3244 (consolidated)
case, cross-examine witnesses and present rebuttal evidence. Defendant’s petition failed to raise
any legal argument or legal authority to support his habeas corpus claim and no prejudice
resulted from the summary dismissal. For the reasons previously discussed, we conclude the trial
court properly dismissed defendant’s habeas corpus ad testificandum petition.
III. FREE TRANSCRIPTS MOTION
Defendant’s final contention on appeal is that the trial court erred in denying him free
copies of transcripts of the proceedings from his pleas of guilty and sentences in case Nos. 89 CR
6782, 89 CR 6783, and 89 CR 6784. On February 2, 1990, defendant pled guilty to one count of
aggravated criminal sexual assault and one count of criminal sexual assault charged under No. 89
CR 6782, two counts of criminal sexual assault under No. 89 CR 6783, and two counts of
criminal sexual assault under No. 89 CR 6784. The trial court sentenced defendant to concurrent
terms of incarceration of 10 years in No. 89 CR 6782; 6 years in No. 89 CR 6783; and 6 years in
No. 89 CR 6784.
Defendant’s argument that he is entitled to free transcripts under Illinois Supreme Court
Rule 605(b)(5) is without merit. 210 Ill. 2d R. 605(b)(5). The State argues correctly that under
Rule 605(b)(2), defendant must have filed a motion to vacate “within 30 days of the date on
which sentence is imposed.” 210 Ill. 2d R. 605(b)(2). Defendant pled guilty on February 2,
1990, and did not file a motion to vacate his guilty pleas until July 1, 2005. Since defendant
waited over 15 years to file a motion to vacate his guilty pleas, the time has expired and he is not
entitled to free transcripts. Accordingly, the judgment of the trial court denying defendant’s
request for free transcripts is affirmed.
22 1-05-2377 & 1-05-3244 (consolidated)
IV. CONCLUSION
For the reasons previously discussed, dismissal of defendant’s section 116-3 DNA motion
was proper because it was barred by the principles of res judicata and the record precluded
defendant from presenting a prima facie case that identity was the issue in the trial which resulted
in his conviction under No. 95 CR 14118. Any procedural error in dismissing the section 116-3
DNA motion was harmless error because the inherent defect regarding the issue of identity in
defendant’s DNA motion was patently incurable. Defendant’s petition for habeas corpus was
properly dismissed. The defendant was not entitled to free transcripts from his pleas of guilty to
a series of sexual assault charges entered in February 1990 under Nos. 89 CR 6782, 89 CR 6783
and 89 CR 6784.
The judgment of the circuit court of Cook Country is affirmed
Affirmed.
TULLY and GALLAGHER, JJ., concur.