FIFTH DI VISI ON June 8, 2007

Nos. 1-05-2377 & 1-05-3244 (consolidated) THE PEOPL

E OF THE

STATE OF IL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) THEODORE LUCZAK, ) ) Honorab le Defend ant-App ellant. ) John J. Mannion and ) Marjorie

C. La ws, ) Judge s Pres idin g. JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: On February

2, 1990, defendant pled guilty to one count of aggrava

ted criminal sexual assault and one count of criminal sexual assault charged unde r 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 concur rent terms of incarceration of 10 years in No. 89 CR 6782; 6 y ears in No. 89 CR 6783; and 6 yea rs in No. 89 CR 6784. After serving these concurr ent sentences, defendant was char ged under indictment No. 95 CR 14118, with aggravated criminal sexual assault, criminal sexual assault, ag gravated kidnaping, and unlawful restraint. A jury found defendant guilty

of two counts of aggrava ted criminal sexual assault and he was sentenced to consecutive prison terms of 60 a nd 40 years. Defendant appealed these convictions, ar guing that the trial court erred in a llowing evidence of1-05-2377 & 1-05-3244 (consolidated)

2

one of his prior crimes of sexual assault. This court affirmed his conviction and held that the prior crime evidence was releva nt 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 t

he Code of

Criminal Pr

ocedure of 1963 (7 25 IL

CS 5/116-3 (

West 2004)) to allow DNA testing of evidence in conne ction with his trial for case No. 95 CR 14118. On July 7, 1999, the trial court denied this petition, explaining that defendant c ould have raised the issue of DNA testing during direct appe al but did not, and thus, the petition was untimely and without me

rit. Def endant di d not appe al. On Ma rch 27, 2 000, def

endant f iled a suc cessive

postconviction petition alleging several issues including inef fective 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 se ntences were unconstitutional in light of the principles articulated in Apprendi v. New Jersey , 530 U.S. 4 66, 147 L . Ed. 2d 435 , 120 S. Ct. 2348 (200 0). The tr

ial cour t ruled tha

t Apprendi did not apply to recidivism or consec utive sentencing and denied defenda nt’s motion and this court affirmed. People v. Luczak , No. 1-01-1-05-2377 & 1-05-3244 (consolidated)

3

3197 (2003) (unpublished order under Supreme Court Rule 23). In September 2002, defenda nt filed a habeas corpus petition alleging that his indictment in No. 95 CR 14118 was faulty and that the c ourt could not have entered a valid judgment. The trial court denied that petition on October 22, 2002, and on appeal this court g ranted 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. Lucza k v. Mote , No. 1-03-0005 (2004) (unpublished order under Supreme Court Rule 23). On Januar

y 10 , 2005, de fendant

filed a mo tion, purs

uant to se ction 116- 3 (725 I LCS 5/116-3 ( West 2004) ), to per

mit DNA te sting on e

vidence used in his

trial unde

r 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 ar gue 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 transc ripts, alleging that he would be s eeking

to withdra

w his gui lty p leas from his convi ctions in N os. 89 CR 678 2, 89 CR 6783, and 89 CR 6784. Those guilty plea s were entered on Februa ry 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 lea ve to file a late notice of appeal from the 1990 g uilty pleas. Defendant presents this court with consolidated appeals seeking review of (1) the denial of his 2005 section 1 16-3 motio n for DNA testing as rela ted to his c onviction s under N o. 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 plea s of guilty on F ebruary 2, 1990. The1-05-2377 & 1-05-3244 (consolidated)

4

factua l basis for defenda nt’s conv ictions under No. 9 5 CR 14118 is f ully discusse d 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. SECTIO

N 116-3 DNA MOTION Defendant contends that the trial court erre d 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 no t exist; and ( 2) the co urt erre d in trea

ting def endant’ s motion for

DNA testi

ng 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 review ed de novo . People v. Price , 345 I ll. App. 3d 129, 133 (2003). De novo review “is appropriate because the trial court’s decision on such a motion is necessarily ba sed upon a review of the pleadings and tria l record and is not based on an assessment of the credibility of witnesses.” Price , 345 Ill. App. 3d at 133. Section 11 6-3 provi des as fo llows:

“(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 finger

print or forensic DNA testing, including comparison analy sis of genetic marker gr oupings of the evidence collected by c

riminal justice agencies pursuant to the allege d offense , to those o f the def endant, t o those of other fo rensic evidence, and to those maintained under subsection (f) of Section1-05-2377 & 1-05-3244 (consolidated)

5 5-4-3 of the Unified Code of Corrections, on evidence tha t 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 request ed beca use the te chnolog

y f or the te sting wa s not avai lable at the time of trial. Reasonable notice of the motion shall be served upon the State. (b) The d efenda nt must pre sent a pr

ima faci e case t

hat: (1) identity was the issue in the tria l which resulted in his or her conviction; and (2) the evidence to be tested has been subject to a chain of custody suf

ficient to establish that it has not been substituted, tampered with, replaced, or altered in any materia l aspect

. (c) The trial cou rt shall a llow the te sting und

er rea sonable condition s designed to prot ect the St ate’s int erests in the integ rity of the ev idence a nd the tes ting pro cess upon a deter mination th at: (1) the r esult of th e testing

has the sc ientific potential to produce new, noncumulative evidence materially re levant to the defendant’s assertion of actual innocenc e even though the results ma

y no t complete ly exonerat e the def endant;1-05-2377 & 1-05-3244 (consolidated)

6 (2) the te sting re quested e mploy s a scien

tific method gener

ally accept ed within t

he rele vant scie ntific community.” 725 I

LCS 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 c onviction, 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 def endant must show that identity was the ce ntral issue at trial and that the evidence to be tested was subject to a suffic iently secure chain of custody.” People v. Johnson , 205 Ill. 2d 381, 393 (2002). I f 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-innoce nce claim. Johnson , 205 I ll. 2d at 393. A. DNA Mo tion Prope rly Dismissed

As Res Judicata The doctrine of res judicata bars consideration of issues that have been previously raised and adjudicated. People v. Blair , 215 I ll. 2d 427, 4 43 (2005) ; People v. Williams , 138 Ill. 2d 377, 392 ( 1990). De fendant argue s that Judg e La

ws erre d in deny

ing his D NA motion b ecause she mistak

enly believe d the appe llate cou rt had pr eviously resolve d the DNA

issue and as a

re su lt co nc lu de d t ha t h is 20 05 DN A m ot io n w as ba rr ed by res j udicata

. On June 30, 1999, defendant in a pro se post-conviction petition sought to obtain an order1-05-2377 & 1-05-3244 (consolidated)

7

to allow DNA testing of evidence used in the trial of ca se No. 95 CR 14118. On July 7, 1999, that post-conviction petition was denied by Judge Fiala. Defendant did not appeal. Defe ndant filed another pro se post -conv icti on pet itio n on Ma rch 27 , 2000 , whic h was d enied by Judge Fiala on April 6, 2000. Defendant appealed a nd 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, defe ndant 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, Judg e La

ws noted that Judge F iala, on July 7, 1999, ha

d previou sly

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 defe ndant had not in fact appealed Judge Fiala’s denial of his 1999 post-conviction petition seeking DNA testing . She, however, further correc tly n oted that section 1 16-3 req

uired ide ntity to be an is sue at the

time of tr ial in order to apply. I

n support of denying

defendant’s 2005 DNA motion, she noted that identity was not an issue during

the trial of case No. 95 CR 141 18 and ind icated a s follows: “It appears that the de fendant filed the same motion on June 22nd of 1999, a

motion to al low DNA te sting. Judg e Fiala dismissed t

hat motion, it appea

rs, on July

7th of 1999 finding that1-05-2377 & 1-05-3244 (consolidated)

8 the petition was untimely, without merit, and denied it acc ordingly. Judge Fiala’s finding was affirme d by the Appellate Court on Novembe r 7th of 2001. I will again deny

the motion for DNA testing. It’s a n issue that has already

been decided by

Judge Fiala and affirmed by the Appellat e Court. I must add that the defendant has f iled this motion under 725 IL CS 5/116-3. One of the requirements is that identity is an issue at the time of trial. I have review ed the findings by the Appellate Court in the defenda nt’s cas e filed N ovember

15th of 1999, and it does not appear that identity w as an issue in this matter and that the defenda nt testifie d at his own

trial tha t he was w

ith the vic tim; although, he disagreed that, in fac t, he had sexually assaulted the victim. So I don’t believe that he has eve n met the criteria for 725 IL CS 5/116-3. I’ll

ask the c lerk to no tify

the defe ndant of m

y 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 hear ing on the matter is also denied, and the matter is taken off call.”1-05-2377 & 1-05-3244 (consolidated)

9

The rec ord ref

lects tha t Judge F iala, on July

7, 1999, de

nied a DN

A motion ma

de in

connec tion with de fendant ’s pro se petition filed by defenda nt 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 wa y chang ed the fact that defendant in 1999 sought DNA testing in c onnection with his post-conviction petition which was considered by Judge Fiala and denied by Judge Fiala in 1999. Judge Laws w as not mist aken wh en she noted that d efenda nt had previ ousl y brought t he sam e issu e befor e Jud ge Fiala in 1999. Thus, the record reflects that Judge L aws correctly

denied defendant’s 2005 DNA motion bec ause the

same issue

had alre ady

been de cided by

Judge Fi ala in 199 9 and ac cording ly was barred by

the principles of res judicata

. B. Summary Dismissal of DNA Motion Was Not Reversible Er ror Defend ant fu rther argues t hat hi s 2005 DNA mo tion was no t prop erly dism issed by Judge Law s because

the “subj ect motion

of Januar y 20 05 was br

ought un der sec tion 5/116 ( 725 I LCS 5/116-3 (West 2000)) Motion for DNA Testing, while the June, 1999 filing was made pursua nt to the Post Conviction H earing Act (Ac t) (725 I

LCS 5/1 22 (West 20 00)).” H e argu es that the se “a re tw o s ep ar at e s ta tu te s e nu me ra ti ng se pa ra te cl as se s[ ,] st at ut or y ri gh ts .” Es se nt ia ll y, defendant contends that the ruling by Judge Laws deny

ing defendant’s DNA motion was in error because she trea ted his DN

A motion lik

e a post- convicti on petition and then s

ummarily 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),1-05-2377 & 1-05-3244 (consolidated)

10

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 af

fording the defe ndant an o

pportunit y to withdraw

or amend the plea ding, is r eversib le error.” We di sagree w ith d efenda nt’s c haract eriza tion of the resol utio n of th e moti on by Jud ge Laws. Judge L aws noted that defendant filed the same motion in June of 1999, a motion to allow DNA testing. However, further dur ing her discussion she specifically indicated her recognition of the fact that the 2005 DNA motion at issue in the instant case was filed under se ction 116-3. She stated: “I must further add that the de fendant has filed this motion under 725 IL CS 5/116-3.” She then accurately

discussed the specific requirements imposed by the DNA statute including the fact that “identity is a n issue at the time of trial.” Mindful of the requirements of the DNA statute, she accurately

referenced in substance the appe llate court case from 1999 affirming defendant’s conviction ( People v. Luczak , 306 Ill. App. 3d 319 (1999)), and she conc luded: “I have re viewed the finding s by

the Appe llate Cour

t in the de fendant ’s case

filed Nov ember 15 th 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 disagree d that, in fact, he had sexually assaulted the victim.” The rec ord ref

lects tha t Judge L aws was w ell awar e of the f act that t he motion a

t issue in the instan t case wa s not made

in connec

tion with a

post-con viction pe tition but, r

ather, w as a DNA motion under section 116-3. We reject defendant’s ar gument that Judge Laws rechar acterize d his DNA mo tion as a p ost-conv iction petition. The

DNA statu

te speci fically1-05-2377 & 1-05-3244 (consolidated)

11

provides for the DNA motion to be brought by the defendant before the trial court that ente red judgment of conviction, which is exactly what the defendant did in this case. 715 ILCS 5/116- 3(a) (West 2004). Judge Laws spe cifically re ferenced the DNA statute. Under tha t statute, before the trial court sha ll conside r whethe r to allow DNA testi

ng, the defenda nt must pre sent a prima facie

case that identity wa s the issue in the trial and that the evidence has been subject to a sufficient chain of custody

. Johnson , 205 I ll. 2d at 39 3; 725 I LCS 5/1 16-3(b) (1), (b) (2) (West 2004). Th e recor

d refle cts that Judg e La

ws was we ll aware

of the la w and cor rectly applied i t in resolving defendant’s section 116-3 DNA motion. Substantively, the dismissal of the defendant’s DNA motion was proper beca use it was barred by

the principles of res j udicata and the record precluded defenda nt from presenting a prima facie case tha t identity was the is sue in the trial

. However, defendant also procedur ally challeng es the summary dismissal of the DNA motion as reversible error rely ing on People v. O’Connel l , 365 Ill. App. 3d 872 (2006), appeal allowed , 221 I ll. 2d 662 ( 2006). De fendant argue s that O’Connel l “held that summary dismissal of a motion for evidentiary DNA testing is illegal.” The court in O’Connel l noted that section 116-3, like section 2-1401 of the Code of Civil Procedure (735 I LCS 5/2-1401 (West 2004)), confers a limited right to challenge a conviction and lacks any express procedural provisions. Relying on People v. Dyche s , 355 Ill. App. 3d 225, 229 (2005), the court in O’Connel l refuse d to read special summary

dismissal procedures into section 116-3 and concluded that “[t]he trial court mus t, at a mini

mum, provi de notice

to the def

endant of its sua sponte motion to dis miss, and the court must give the defendant an opportunity to respond.” O’Connel l , 365 Ill. App. 3d at1-05-2377 & 1-05-3244 (consolidated)

12

877. However, the court further held that “ha rmless error analy sis applies to the summary dismissal of a post-conviction petition for DNA testing of evidence.” O’Connel l , 365 Ill. App. 3d at 877. We agree with O’Connel l ’s reco gnition o f the nee d for the trial cou rt to provide notic e to defendant and give the defe ndant an opportunity to be hea rd before summarily

dismissing a DNA petition. We also agree with O’Connel l that the harmless error analy sis applies to summary dismissal of a DNA petition. We are well aware, for the re asons previously discussed, that in the instant case, defendant’s DNA motion under section 116-3 wa s not recharacterized by the trial court as a post-conviction petition. Moreover, the DNA motion was not brought in conne ction with section 2-1401. Cases previously r ecognizing the need for the cour t to provide defendant notice and an opportunity to be he ard 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 I ll. App. 3d 946 (2005)). We conclude, however, that it is similarly unf air to a defendant, when faced w ith a proposed sua spontesummary dismissal of a section 116-3 motion, to be deprive d of notice and an opportunity to be hear d. We recognize that summary dismissal procedures not provided by the DNA statute can deprive defendant of notice and an opportunity to be he ard 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 proce dure, should not be read into section 116-3 ; accor dingl y, a defend ant is entit led to noti ce and a n oppo rtuni ty to be he ard rega rding a section 116-3 DNA motion.1-05-2377 & 1-05-3244 (consolidated)

13

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 I ll. App. 3d 781 (2000). In Stevens , the trial court summarily dismissed the defe ndant’s motion for post-con viction DN

A testing under se ction 116- 3. In

discussin g secti on 116-3, the cour

t in Stevens stated a s follows:

“Section 116-3 doe s not state

that a de fendant

is entitle d to a hearing. Under defe

ndant’s interpretation of the statute, a trial court mus t hold a he aring on every motion reg ardless

of the me

rits of the motion. Courts will not interpret a statute to guarantee a hearing as a matter of rig

ht without such language in the statute. [Citations.] We conclude that defendant was not entitled to a hearing as a matter of rig

ht 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 “bec ause (1) section 116- 3 of the Code does not require that the trial court conduct a hea ring on defendant’s petition, (2) identity was not the issue in the trial that resulted in def endant’s conviction, and (3) the blood he sought to have tes ted would

not produc e new, noncumulat ive evide nce mate rially releva nt to defendant’s assertion of actual innocence .” Stevens , 315 Ill. App. 3d at 784. In Dyches , 355 Ill. App. 3d at 229, we recog nized the need for the court to provide a defe ndan t noti ce a nd an oppor tunit y t o be h eard

in the cont ext of

a section 2 -140 1 pet

ition . We held that “summary dismissal, which is a dra stic procedure, should not be read into the1-05-2377 & 1-05-3244 (consolidated)

14

procedures provided by

section 2-1401.” Dyches , 355 Ill. App. 3d at 229. However, we further held that “harmless error analy sis should still be applied where defects in a section 2-1401 pe ti ti on ar e p at en tl y incurable.” Dyches , 355 Ill. App. 3d at 229. Similar to Dyches , harmless error analysis should apply where de fects in a section 116-3 DNA motion are patently incurable. If dismissal of the DNA motion is inevitable and f urther proceedings would have little remedial eff ect and only de lay 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 I ll. App. 3d 946 (reiterated Anderson ’s holding that summary dismissal, even if regarded as procedurally

erroneous, remains subject to harmless error a nalysis, 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 ana lysis 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 I ll. App. 3d at 229 (“ harmless

error a naly sis should s till be app lied wher e defec ts in a section 2-140 1 petition a re pate ntly incurable”). As previously noted, the cour t in O’Connel l similarly recog nized that harmless error analysis applies to the summary dismissal of a DNA post-conviction petition. O’Connel l , 365 I ll. App. 3 d at 87 7 (“fol lowi ng Dyches , we further hold that harmless error analy sis applies to the summary dismissal of a post-conviction petition for DNA testing of evidence”). I

n O’Connel l , the trial court dismissed the DNA post-conviction petition because defendant pled g uilty to the1-05-2377 & 1-05-3244 (consolidated)

15

charges, and therefor

e, the court reasoned, he could not meet the statutory requirement of showing that “identity wa s the issue in the trial.” 725 IL CS 5/116-3(b)(1) (West 2004). However, in O’Connel l , after considering the recor d as a whole, based on the underdeveloped nature o f the re cord, the

appella te court indicate d that it co

uld not con

clude tha t any error in deny ing the D NA post-c onviction

petition w as harmle ss: “This court and the trial court could both benefit from a fuller development of the arguments concer ning interpretation of section 116-3. B ecause

we cann ot conclu de that th e proce dural de fects had no prejudicial effect, we reve rse and remand for proper notice of the co urt’s sua spontemotion to dismiss and to give defendant an opportunity to respond to the dispositive motion.” O’Connel l , 365 Ill. App. 3d at 878. Thus, O’Connel l recog

nized appl ication o f the har mless err or analy sis, but fo und the re cord 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 deny

ing the DNA petition was in fact harmless error. We are mindful that the O’Connel l case is c urrently under co nsidera tion by the I llinois Supreme Court. People v. O’Connel l , 365 Ill. App. 3d 872 (2006), appeal allowed , 221 Ill. 2d 662 (2006). We take no position on whether any error in deny

ing the DNA petition in the context of the plea of guilty at issue in O’Connel l was in fact harmless, as that is currently under consideration by the supr eme court and not relevant to the issue in the instant appeal. O’Connel l ,1-05-2377 & 1-05-3244 (consolidated)

16

365 Ill. App. 3d at 877. Rather, we re ly on O’Connel l only for the spec ific principle that the harmless error analysis can apply to the summary dismissal of a DNA petition. O’Connel l , 365 Ill. App. 3d at 877. We note that defendant, in rely ing on O’Connel l , argues that “the I llinois Appellate Court has held that summary dismissal of a motion for evide ntiary DNA testing

is illegal.” That argument fails to take into consideration that while O’Connel l recognizes summary dismissal should not be read into section 116-3, O’Connel l also recognizes that summary dismissal depending on the record as a whole can be recognized as err

or, but affirmed if harmless error. O’Connel l , 365 Ill. App. 3d at 877. In the instant ca se, for t

he reas ons previ ously

discusse d, we re

view the r

ecord a s a whole and consider whether the summary dismissal of defendant’s section 116-3 DNA motion was harmless error. Section 11 6-3 provi des in per tinent pa rt: “(b) The defendant must present a prima facie case tha t (1) identity was the issue in the tria l 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-develope d record in the instant case directly rebuts that allegation. Unlike the court in O’Connel l , which reviewed a record ref

lecting a defendant’s guilty plea, in the instant case, we review a fa r more extensive record. Defendant brings the sec tion 116-3 DNA motion as the result of his conviction of two counts of aggrava

ted criminal sexual assault after a fully litigated jury tria

l in case No. 95 CR 14118.1-05-2377 & 1-05-3244 (consolidated)

17

On direc t appeal

of those t wo convictions, def

endant a rgued that since

he admitte d to having been with the victim, other crime evidence was not relevant to establish defendant’s identity or intent. People v. Luczak , 306 I ll. App. 3d 319, 327 ( 1999). We a

ffirmed his conviction and held that the prior crime evidence was r elevant to defendant’s intent and modus operandi

. Luczak , 306 Ill. App. 3d at 327. Moreove r, the re cord re flects, d

efenda nt, in an in

terview with the po lice bef

ore tria l, 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 w ith 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 ge t the cocaine for her to purchase. Luczak , 306 Ill. App. 3d at 323. Defendant testified tha t an argument occurred as a result of a dispute over the cost of the cocaine and defendant eve ntually kicked the victim out of the car. Luczak , 306 Ill. App. 3d at 323. In response to defenda

nt’s argument on appeal that since he admitted to being with the victim any

evidenc e of othe

r crimes was not re levant to

identity or intent, we found

other cr ime 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 defe ndant’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, def

endant, in June of 1999, filed a post-conviction petition seeking1-05-2377 & 1-05-3244 (consolidated)

18

an order , pursuan

t to sectio n 116-3, to

allow DNA

testing of evide nce used in his tria

l. 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 we re in any way re lated to DNA testing. This petition was also denied, and on appeal, this court af firmed 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 ca se, defe

ndant, in 2 005, file d a motion p ursuant t o section 116-3 to pe

rmit DNA testing on evidence related to his trial under N o. 95 CR 14118. However, the record reflects the inherent defect in defe ndant’s DNA motion is patently incura ble. Judge Laws summarily

dismissed d

efenda nt’s motion

noting a s follows: “One of the requirements is that identity is an issue at the time of trial. I have review ed the findings by the Appellate Court in the defenda nt’s cas e filed N ovember

15th of 1999, and it does not appear that identity w as an issue in this matter and that the defenda nt testifie d at his own

trial tha t he was w

ith the vic tim; although, he disagreed that, in fac t, he had sexually assaulted the victim.” Both the trial and appellate record direc tly and repea

tedly rebut the fa

ct that identity was an issue in the tria l which re sulted in d

efenda nt’s conv iction. We f

ind, in the

instant ca se, that r

egard less1-05-2377 & 1-05-3244 (consolidated)

19

of wheth er the c ircuit co

urt erre d in failin

g to prov ide defe ndant with

notice a nd an opportunity to be heard before summarily dismissing his section 116-3 DNA motion, defendant could not have cured the inherent defec t in his DNA motion because he could not allege, or prese nt a prima facie case that identity wa s the issue in the trial which resulted in his conviction as required by section 116-3. 725 IL CS 5/116-3 (West 2004). The summary dismissal of the DNA motion was inevitable and further proceeding s would only have delay ed the result. Accordingly , any procedu ral err or was ha rmless. 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 defe ndant from presenting a prima facie

case tha t identity was the is sue in the

trial whic

h resulte d in his conviction. Moreover, any procedural error in summarily dismissing defendant’s DNA motion was harmless error. II

. HABEAS CORPUS Defend ant’s thir d content ion is that t

he trial c ourt err

ed in dismis sing his p etition for writ of habeas corpus . Defen

dant arg ues that the trial c ourt summa rily dismissed h

is petition in violation of the Habeas Corpus Act (Act) (735 I LCS 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 i s de novo . See Woods v. Cole , 181 Ill. 2d 512, 516 (1998). Defenda nt 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 may1-05-2377 & 1-05-3244 (consolidated)

20

summarily

dismiss a de fendant ’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 ) (dis miss ing habeas corpus petition without giving defendant notice and an opportunity to respond to trial court’s ac tion is reversible error). In Carroll , this court summarily denied a habeas corpus petition where defendant did not raise any legal argument or cite leg al authority to support his claim under the Ac t and no prejudice resulted from summary dismissal. Carroll , 351 Ill. App. 3d at 975. I n 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 und

er the Ac t, a priso ner is en

titled to a n immediat

e relea se from in

carce ration if the term during which the prisoner may be legally

detained has expired. 735 IL CS 5/10-123(2) (West 2000) . Addi tion ally, th e Act p rovid es tha t a pri soner may be dis charged where, altho ugh the original imprisonment was lawful, some subsequent act, omission, or event has occ urred entitling the prisoner to a discharge. 735 I LCS 5/10-124(2) (West 2000). Defend ant 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 ca used to be filed Motion to a

llow DNA T esting a

nd Discov ery .” Defe

ndant fur ther alle ged in h

is petition that his case “depends in large pa rt on his own testimony” and reque sted to be present to manage the1-05-2377 & 1-05-3244 (consolidated)

21

present ation of h is case. Specific ally , defend ant alleg ed that he

“should ha

ve the le gal rig

ht to cross-examine any of

the plaintiff’s witnesses, and to have the court hear his ca se and to present appropriate rebuttal evidence.” Defendant’s petition does not identify any specif

ic reason why

he is entitled to habeas corpus relief under the Act; however, he c ontends that the Act does not allow summ ary

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 ref lects that defendant’s petition, like the petition in Carroll , did not ra ise any leg al issue cognizable under the Act, or raise any legal argument or leg al authority to support his claim; accordingly , no prejudice resulted from the dismissal. As previo usly noted, the

trial cou rt did not r

echara cterize d efenda nt’s plea ding as apostconviction 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 recharac

terizing a pleading as a first post-conviction petition). Defe ndant had already filed successive post-conviction petitions which had been resolved prior to the DN A motion and habeas corpus petition which were filed in the instant case. Rather than rechar acterize his petitio n, the tria

l court a ddresse d the pre cise pet

ition pres ented an

d the pre cise relief requested by

defendant and concluded that “the defe ndant’s Petition for Writ of Habeas Corpus Relief in that he wants to appear in court for the hear ing on the matter is also denied, and the matter is taken off call.” That ruling direc tly addressed the r

elief requested in defendant’s “Petition For Writ of Habeas Corpus Ad Testificandum ,” speci fically to be pre sent to man

age his1-05-2377 & 1-05-3244 (consolidated)

22

case, c ross-exa mine witne sses and present r ebuttal e vidence . Defen

dant’s pe tition fai led to ra

ise any legal a rgumen t or leg al author

ity t o support h

is habeas corpus claim and no prejudice resulted from the summary dismissal. For the reasons previously discussed, we conclude the trial court pr operly dismissed d

efenda nt’s habeas corpus ad testificandum petition. II I. FREE TRANSCRI

PTS MOTION Defendant’s final contention on appeal is that the trial court er red in denying

him free copies of transcr ipts of the procee dings fr

om his plea s of guil

ty a nd senten ces in ca se Nos. 89 CR 6782, 89 CR 6783, and 89 CR 6784. On February 2, 1990, defendant pled guilty to one count of aggravated cr

iminal 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 defenda nt to concurrent terms of i ncarce ration of 10 y ears in N o. 89 CR 6782 ; 6 y ears in N o. 89 CR 6783 ; and 6 y ears in No. 89 CR 6784. Defendant’s argument that he is entitled to fre e transcripts under Illinois Supreme Court Rule 605(b)(5) is without merit. 210 Ill. 2d R. 605(b)(5). The State a rgues 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 deny ing defendant’s request for free transcripts is affir med.1-05-2377 & 1-05-3244 (consolidated)

23 IV. CONCL

USION For the reasons previously discussed, dismissal of defendant’s section 116-3 DNA motion was proper because it was barre d by the principles of res judicata and the record precluded defendant from presenting a prima facie case that identity wa s the issue in the trial which resulted in his conviction under No. 95 CR 14118. Any proce dural error in dismissing the section 116-3 DNA motion was harmless error because the inhe rent defect regar

ding the issue of identity in defendant’s DNA motion was patently incurable. Defendant’s petition for habeas corpus was properl y di smissed. T

he defe ndant wa s not entitl ed to fre e transc ripts fro m his pleas

of guilt y to a series of sexual assault charges enter ed 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. TULL Y and GALL

AGHER, JJ., concur.