case because the trial court here did not arbitrarily refused to hear from counsel rather its action was fully consistent with this court's neutral generally applicable procedural regulation governing limited scope appearances now i will grant that this is a somewhat unusual case because at the circuit court level both parties and the court were laboring under some misconceptions about the nature of the d n a testing action its interaction with limited scope appearances and i'll try to disentangle those as we go along so defended mr god luck was convicted of predatory criminal sexual assault and aggravated criminal sexual abuse against his ten year old daughter he then filed a pro se post conviction action he was briefly counseled in that action with appointed counsel was a public defender but he waived counsel and was pro se at the time of the relevant events here on that action he also had a counsel section two fourteen zero one action with retained counsel and then he also filed a motion made an oral motion for leave to enter a limited scope appearance under this court's rule thirteen c six in the d n a testing action this court has made clear that the d n a testing motion under section one sixteen three is a standalone civil action it generates its own final appeal will judgment is that the same thing i want to kind of raise the issue about the language of the rule dealing with civil cases and i know questions about this after all this case is called the people versus gullah people is still a state of illinois against this girl act and in each one of these  collateral attack on a criminal judge yeah we do concede that justice tice we would admit that it's confusing and there are potential traps for the unwary here not only is it a people case but it it keeps the criminal case number all of these to the two fourteen zero one the post conviction case post conviction here he had case and the motion for d n a testing under section one sixty three they all carry the criminal six it is theoretically available to a litigant for his counsel to seek a limited scope appearance and that kind of if there is a question of course whether he's indigent here but when indigent defendant have a right to appointed counsel on this wish to limit his representation within the one sixteen three action because he never complied with the requirements of rule thirteen c six of rule thirteen  requires counsel to file a notice of limited scope appearance which would then identify each aspect or issue or proceeding within the action that the council wishes to represent ayat in which the appearance pertains is also a form that both lawyer and client have to sign to attest that they entered into a written agreement describing the scope of the representation within the action  this case or the decision because if the truckers basis for denying the request was that brodsky basically needed to get back to the drawing board and figure out what he wanted either a general  the trial court clearly understood that it was a request by brodsky to represent the found it only as to the section one sixteen s three were seating and this was something defending clearly had a right to nevertheless the trial court to deny the request simply because it didn't want to deal with multiple attorneys so what are we to do with that base well i would say a couple of things about that justice thomas and first of all the trial court can only act on the motions that are properly presented to and as far as the trial court here was concerned it was acting on a motion for leave to enter a limited scope participate but i would say further there's no constitutional right to have counsel of choice for each individual issue within a case so at some point the trial judge who again is confronted with what appears to be at any rate a motion for a limited reparation and that's where i'm having difficulty because i'm based on what the truck or clearly believed it was doing the truck first part of your argument as to whether this was properly brought but i'm having difficulty and what the trial court actually did in his rationale i think there's no doubt that the trial court was under some misconceptions here you know the trial court seemed to believe that the second one sixteen three d n a testing motion was part of the broader post conviction action in fact the transcript appeared that he also believed the two fourteen zero one was somehow part of his conviction action and was addressing a limited scope appearance with respect to that but i would say th first as i said i don't think the constitution can be read to require a trial court to discern or divine what counsel really wants as opposed to what he says he wants but to your question about what the trial court seemed to be basing  two fourteen zero one action general appearance if that had been properly presented and the court had reached out and said i'm not going to allow another general appearance within this broader countries of post conviction proceedings because i don't want to hear from too many lawyers that would be a different story and we would definitely have a powell versus alabama issue in front of us they were right can you show us th case and saw that there was a d n a issue and failed to file this type of motion that he the two fourteen zero one lawyer had not provide reasonable assistance and the words we got a lot of different applicable obligations trying to work now in this one case are you aware of any other case where they're worse than like that i'm certainly not aware of any other case in which this court or frankly any other court has found there to be a constitutional right for a client to say i want to have separate counsel my choice sort of sliced up and demarcated issue by issue on a limited basis that may not be fully responsive to your question but i  certainly am not aware of any case in which the power right or the analogous sixth amendment right in a criminal proceeding has been held to be implicated when counsel wishes to have separate representation issue by issue  proceeding by proceeding typically what would happen is if the client has you know means and this is their wish they might hire a set of lawyers or a firm of course would be then free to make general appearances t the ethical obligation would then run to the client respect to all of the issues raised but that's not what we have here and we don't have a situation where the trial judge ha general appearance and said sorry too many cooks spoil the broth i'm not going to allow another lawyer in on this matter i'm frankly not aware of a case like that either but we would concede that that would present  that this case is it is not like that you know the look i don't think the court should take the step of finding that there's a constitutional right to have counsel one's choice for each discrete issue proceeding within a case the united states supreme court has made clear again in the analogous sixth amendment context of criminal cases that the right to counsel of choice is quote circumscribed in several important respects that's fairness and the defense of their calendars and that was a case in which the court five to four did hold that a sixth amendment denial of counsel of choice was a structural error so what we would forfeiture issue i'll go ahead and address that if that's alright the burden was on mr brodsky to comply with the affirmative obligations of the motion that he chose to bring in those are the requirements of rule thirteen c six defend it argues in this court that the state is for close from arguing that there was a failure of compliance with rule thirteen c six but of course we're entitled to seek a ferment on any ground that's properly presented in the record the record i think clearly reveals that there was no compliance not substantial not strict but no compliance with rule thirteen c six but to the extent that there's a void in the record or an absence of evidence on that that's due to mr brodsky failure to comply with those affirmative obligations it wasn't the state's burden to contemporaneously object or put him on notice or to require him to make a record on that the rule requires a so yes we wouldn't be here and as far as the trial court doing the right thing for the wrong reasons i mean i would qualify that just to the extent of saying the reasons were somewhat tangled and confused if there was error in the trial court's  reasoning we would want to strenuously emphasize that that error is not constitutional in nature there may have been error in applying the relevant rules or in understanding the meets and bounds of the relevant proceedings here  t if the court were to find constitutional air here the court were to find of power violation i think that would call into question a lot of routine procedural steps that courts take all the time whether it's entertaining requests for continuance of that substitute counsel can get up to speed or routine conflict issues or even processing prohack reach a motions there are a lot of circumstances in which  but i'm not going to allow this this limited scope appearance if i could speak just briefly in that remaining time so harmless error i've already argued of course that there is no constitutional  three applies only where identity is at issue at trial and here it wasn't defended mitt is that he was with his daughter on the night in question he admitted to touching and kissing her while dressed it most in his underwear admitted to treating her and his words like a wife or girlfriend or eighteen year old rather than the ten year old that she was admitted that she was probably telling the truth and that he was too embarrassed to admit what had happened his only theory a trial was that the actions that he engaged in didn't rise to the level of aggravated criminal sexual abuse if that's enough to put identity at issue that identity is at issue in virtually every case that goes to trial that identity prerequisite would be rendered superfluous n a evidence was never introduced relied on by the state in this case and there is no d n a to test the so called touch d n a from the victim's clothing the defendant says he wants to test wouldn't be probative of anything because any number of people could have to be clear the issue mr godlike raise on appeal was that he was denied his due process right to retain counsel to represent him on his motion for d n a testing and to be clear in addressing this issue  versus alabama mr godlike had a constitutional due process right to retain counsel to represent him on quote any matter he wish including the d n a motion and the wrong and the state does not seriously dispute that a complete denial of this right which is exactly what occurred in this case is not subject to harmless error review and i think though the issue that the state's bringing raises for the first time here an attempt to reframe reframe what was the trial court's error as counsel's error for failing to enter an appearance in the proper way specifically the council didn't properly correctly enter a general appearance on the d n a motion or file proper forms under thirteen c six ignores what actually happened below and relatedly ignores their whatever justification they are coming up with now for the trial court's ruling the consequence of the ruling was to completely deprive mr black of his due process right to retain counsel which is the only right to counsel that he had on his motion for d n a testing and that that's what the appellate court  held when you look at what happened below when private counsel requested leave to begin a motion there was no discussion of whether he had the proper paperwork under rule thirteen c six in fact it was the prosecutor who scope of parents under thirteen c six that he said meaning i just want to appear on the d n a motion and no other matter and he even referred to the fact that the trial court had granted mr kaplan leave to nobody understood what we mean by limited they met we know that mr godlike has three separate proceedings and i don't know that you let another attorney represent him in that case and i just want to do the same thing but just for the motion for wrong and then but mr godlike himself responded to the prosecutor's objection and said ok please if not under thirty rule thirteen could you just exercise your discretion like you did with mr kaplan and could you please let him represent me and the prosecutor again objected and this time she said well limited scope shouldn't apply here because this is a criminal claim case not a civil case in the state now concedes that this objection was baseless in fact e in this case i mean how how does it benefit either the state or the court in ruling on his motion but unfortunately despite the state's objections having no basis the court relied on that those  understood i mean the the everyone understood that mr gao block was asking to have his right to retain counsel he was asking to have mr brodsky represented on the d n a motion alone and the state now agrees that counsel could have done so had he filed the proper forms there was but there was no mention below of whether counsel had these proper forms there was no indication that the state or the court were even aware what thirteen sixty six by as the state also argues in its brief there's absent prejudice to another party or you know the lady in the administration of justice which they're not arguing either either of those grounds here the trial court should allow an attorney to enter his appearance the presumption is that the attorney should be allowed to represent a client in fact that's considered completely consistent with that any attorney it doesn't matter if i'm asleep it doesn't matter if it's civil or criminal that's what paul says paul says in any case if you hire an attorney to represent you to help you you should you should represent you should be allowed to have to represent you but even if even if and i think the overall the per the biggest problem with the state's argument is that they don't deal with the consequence of what the court ruling in this case and the kind of consequences of course the court's ruling in this case was that mr gao black was completely denied his right to counsel but even if let's say the failure to file thirteen c six forms are properly entered general  were really the issue in this case despite the fact that it wasn't raised in the trial court or now in compliance wasn't race on appeal and it's being a race for the first time here let's say it is the the consequences of the rule again that the state proposes that the trial court can properly deny the find it has completely deny him his due process right to retain counsel is just unjustifiable under the law as your honor pointed out it's in the court's discretion to allow an attorney to appear and i pay twenty five of our brief we cite several cases showing that and attorney appear the court allowed an attorney just appear despite the attorney's failure to file the proper appearance and again the state itself argues that absence a showing of prejudice or interference with the administration of justice appearance of counsel should be accepted and to take the positions here that it's proper to disqualify him and tourney from representing his or her client because that attorney that the client the attorney did not file proper paperwork is a drastic measure that's completely out of proportion to the purported rule violation and i think by comparison we can look to other rules of this court that govern procedures for an attorney to follow so for instance with rule six zero four d if an attorney fails to file a certificate or even files a deficient  certificate the defendant is not denied his right to counsel the case is remaining and for the attorney to file a new certificate in the post conviction contacts rule sixty six fifty one c operates the same way if counsel doesn't file a certificate the defendant is not deny his right to post conviction counsel in fact the state on appeal can supplement the record with the certificate to show compliance and or the you can look to the remain just for just for a new hearing on the motion and that would be the reasonable remedy here if it's truly a failure to file the right forms for entering an appearance then what then then remain on the case for a new hearing and ha forms and should we trust the merits of the motion knows you shouldn't address the merits of the motion because a complete denial of counsel is due process violation that's just simply not subject to identification question i and then as we showed in our brief there are several cases which show that despite the victim's positive identification of the defendants the defendant is an aisle of the finance not to put identity at issue you know in price people versus places similar where occurrence witnesses corroborate the victim's charge that the defendant had sexually assaulted him but the defendant the dependent maintained that they were lying and that he did not commit the offense that that is how identity is at issue here as well and i think the other reason that harmlessness is not a clickable here is exactly because at the hearing he also had a letter from this expert witness who had evaluated his motion and who's who said that you know who would have been able to speak to the materiality of the evidence with the relevance of the test results that he was seeking but the trial court would allow mr complex to present that letter he wouldn't allow him to present testimony from his expert witness i mean that's that's of the other issue that we did raise below that the court didn't have to address that because we argued that the court had no basis for denying this but had mr black had an attorney to present this evidence and explain its significance i think there's a much greater likelihood that the court would have allowed it given that it was being offered by a skilled advocate rather than a pro s politics plain it's rooted in notions of due process it's a basic element of due process of the due process right to a hearing and that's because the hearing has always included the right to the aid of counsel when desired and provided by the party asserting that right and that's why counsel powell says if in any case civil or criminal a court were truly to refuse to hear a party by counsel which is exactly what happened here it would be a denial of a hearing and therefore d process in the constitutional signs this court has recognized the critical importance of the right to procedural due process in post conviction proceedings in people versus kitchen impounds this court  assistance of counsel on this post conviction petition the case is remain as per hearing without again without an evaluation of the petitions merits but we have here is is worse this is the only right to counsel mr conway had it was a right to hire an attorney and that was that was denied and so certainly if you know it can be deny it and the basis of an resoled assistance the case is remanded for a new hearing because it's so and in fact it is all a slope as the court stated that the right to select counsel of one's choice has never been derived from the sixth amendment purpose of ensuring a fair trial in the court stated that the right to counsel of choice is regarded as the root meaning just like compile of the constitutional guarantee of counseling fact in support of that principle it cited powell so the deprivation is complete when the defendant is erroneous lee prevented from being represented by the lawyer he wants because it's facts are too hard to measure and again here the assistance in this case would it's palpable i mean the assistance would have been particularly helpful given the complexity of the law and science involved in d n a testing unsuccessful attempts to present a let his expert witness you know which is a pro se define it unfortunately the court ignored it when he tried to present his his letter in that and when he tried to present the expert who was there at the hearing as a witness sometimes no skill in the science of law council could have provided the guiding hand to explain to the court the legal significance of the evidence and its relevance and in that way counsel not only would it help mr cobb black but also the court  considering in evaluating the merits of his of motion so you're on this we would say that noncompliance with rule thirteen c six was not an issue in this case and because it was not of the record below doesn't match there's there's really no discussion of the noncompliance with thirteen c six issue this case with certainly this is not the right case for addressing that issue and nor would it i mean the trial court's complete denial of counsel on those grounds be the right issue now the state is claiming as your honor is suggesting that it only applies if someone else committed the crime but in the cases that we cite people versus people versus price people versus paris  the courts did not find that identity was only at issue because the defendant could point to someone else the court found that the identity was that issue because the defendant contested his guilt at trial his his theory was that he was being falsely accused and based on those cases yes identity he made a prima facie case in this case that identity was that issue so in every case with defendant pleads not guilty he has a right to defendant may maintain innocence liability on any number of theories aside from you know aside from it's he's saying that he did not commit an offense he can say he can certainly wouldn't be an issue in those cases but it is a mis case it's definitely at issue in this case because mr godlike contested his guilt the theory at trial was that he didn't do this theory at trial was that you know he was being falsely accused kerry was not someone else to know the theory was i didn't do this and i'm being falsely accused that's right and again i  d i would suggest that the cases that we cite support that that evidence or that dearie raises a prima fashion issue of identity and i will say sure that in during his statements in the pre sentence investigation report in that sense and he specifically sighed i'm innocent i did not do these offenses and i've been falsely accused i mean he specifically said that and that is the theory also that he's raise just a few points your honor's first defendant argues that this was essentially a general appearance in disguise that are going to come here for the first time in this court that was not the way this motion was presented if the trial court had understood from counsel sixteen three is a separate proceeding and i'm entering a general appearance in that proceeding just as mr kaplan had done for the two fourteen  one then the issue that defendant wishes to present here would have been presented but defendant failed to make a clear record of what he was requesting he could have made an offer of proof for example he didn't do that it wasn't our burden first of all this court disagrees with us and finds that there was error here i would reiterate we would strenuously argue that it was not constitutional error i'm not aware of any court th so there wasn't constitutional error here and for that reason of course argument is there's no need for a remained reform d n a analysis this is not a case where there was any prejudice from that era  and it's not a case about identity or a case in which physical evidence such as d n a was ever belied upon by the state to the question that was raised by justice kilbride and  showing that there was an issue at trial as to whether defendant or somebody else committed the crime people versus perez which was cited by my friend on the other side well the only question is whether defended being the person who committed the crime defense theory of the case and perez was that there had been an assault but he was not the perpetrator people versus price same way this was an inmate case sexual  described by this court as having facts nearly identical to johnson in all those cases what's revealed is the common sense of the matter which is that identity is at issue in d n a testing is available only where the defendant argues that somebody else committed the crime language and perez about a failure of mens rea or corpus delicti i that's really not distinguishable from from this case the defendant argues look i know i was there showed some affection to my daughter i did some things but it doesn't rise to the level of the offense there's no meaningful distinction between a case like that and one where i defended argues that  counsel with this or reporting for over substance that we reverse your boat or i don't think so i think this court would be reiterating the basic principle that courts rule on the motions that are presented to them which obviously is an important principle for the administration of justice if this court did decide that there was ever you know of course there there could be there could be a although i would note that there is no limit on second or successive motions under section one sixteen three so if the defendant or any defendant has a basis he feels that he has a basis for one he could file another one about appointed counsel the right to reasonable assistance employed counsel does apply to post conviction proceedings of the post conviction hearing act it doesn't apply here under under one sixty three or to the two fourteen  we back to the outcomes if they have a right or a different motion in a different time are we right back to that well that's the way one sixteen three actions work of course we would say that there is no basis for a one sixty three now or that the principle that really matters to the state here and the reason why we filed the p l a is  think it would be problematic for this court to find that there's how violation whenever a trial court's error happens to result in the disqualification of counsel seeking a limited scope case number one two three one a two people versus golic agenda number two will be taken under advisement as agenda number two mr prank than this you can we thank you for your arguments today or