## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Patterson , 2012 IL App (4th) 090656

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. RI CKY A. PATTERSON, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-09-0656

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed June 8, 2012 July 11, 2012

June 8, 2012

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant was entitled to the rea sonable assistance of counsel on his postconviction petition seeking new DNA testing under section 116-3 of
the Code of Criminal Procedur e, wher e postconviction counsel wa s appointed for defe ndant, counsel incorporated defe ndant’s pro se petition into an amende d postconviction petition, and counsel filed a Supreme Court Rule 651(c) c ertificate but then did not present evidence or m ake arguments conce rning the new DNA testing, thus eff ectively cre ating a proce dura l b ar to defe ndant’s section 116-3 motion; the denial of the petition was reve rsed and the cau s e rema nded to deter

mine whether defe ndant ca

n satisfy the re quirements of se ction 116-3.

Dec ision Under Review Appea l from the Circuit Court of Champaign County
, No. 02-CF- 1597; the Hon. Charle s McRae L eonhard, Judg e, pre siding.

Judgment Affir med in part a

nd reve rsed in par

t; cause r emande d with directions.Counsel on

Appea l Michae l J

. Pelletier, of State Appellate Def ender ’s Offic e, of Springf ield, and J ohannah B. Weber and Paige Clark Strawn, both of State Appellate Def ender ’s Off

ice, of Mt. Vernon, f

or appe llant.

Julia Rietz
, State’s Attorney
, of Urba na (Patrick Delfino, Robert J

. Bide rman, and Anastac ia R. Brooks, all of State’s Attorney s Appell at e Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE COOK delivere d the judgment of the c ourt, with opinion.
Justices Pope and Kne cht conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Ricky A. Patterson, appea ls the trial court’s denial of his motion for f orensic testing not available at trial pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedur e C o d e) (7 2 5 I L CS 5/116-3 (West 2008)). He contends he was denied a rea sonable level of assistance of counsel beca use his cou n s el fa i l ed to provide sufficie nt information to the trial court in support of his motion. We agreeand re verse

.

¶ 2 I . BA CKGROUND ¶ 3 In April 2003, a jury convicted defe ndant of first degree murder (720 IL CS 5/9-1 (West 2002)), arson (720 I L CS 5/20-1 (West 2002)), and conce alment of a homi ci d e (7 2 0 I L CS 5/9-3.1 (West 2002) ) based on the June 18, 2002, murder of Der rick Prout. B loodstains on the carpet of defendant’s re ntal home matche d (1) a n unidentified male a

nd (2) Prout. The trial court sentenc ed defe ndant to 50 year s’ imprisonment for murder, 5 year s’ imprisonment for conce alment of a homicide, to run consec utively to the murder sentenc e, and a concur rent 5-year sentenc e on the arson conviction. This c ourt aff irmed the convictions and sentenc es

on direc t appea l in People v. Patterson
, 347 I ll. App. 3d 1044, 1056, 808 N.E.2d 1159, 1169 (2004). ¶ 4 On June 15, 2006, defe ndant filed a pro se postconviction petition and separ ate motion for deoxy ribonucleic acid (DNA ) tes tin g pursuant to section 116-3 of the Criminal Procedur e Code. Def

endant also filed a motion to proce ed in forma pauperis and for the appointment of counsel. Def

endant’ s postconviction petition did not addre ss section 116-3. In his separ ate section 116-3 motion, defe ndant alleg ed that his claim of actual innocenc e is predic ated upon DNA testing and “indepe ndent DNA testing i n th i s case [would] reve al newly discovere d evidenc e of the defe ndant[’s] innocenc e.” ¶ 5 On June 21, 2006, the trial court appointed counsel for defe ndant on his postconvic tion

-2-petition. In 2007, defe ndant’s appointed counsel amende d the postconviction petition but did

not file an amende d section 116-3 motion on defendant’s behalf

. T h e amende d post co n v iction petition included an amende d section 116-3 claim, stating that defe ndant “believe s he has met the require ments of 725 I L CS 5/116-3 [(W est 2006)] to have a new DNA testing completed: more acc urate DNA testing is available now than at the time of the trial, identity was an is s u e at trial, and the State has maintained custody of items to be rete sted.” ¶ 6 The State filed an answe r to defe ndant ’s am en d ed p o s t conviction petition denying defe ndant had met the require ments of section 116-3 for new DNA testing. The State alleg ed defe ndant had “ failed to show what form of DNA testing, not a vailable a t the time of trial, would result in materia l non-cumulative e vidence .” ¶ 7 Be tween July 2007 and J anuar y 2008, the trial court held an evident i ary h ea ri n g o n defe ndant’s amende d postconviction petition. The State made a motion for a direc ted finding

on sever al claims in defe ndant’s amende d postconv ic ti o n p e titi o n , alleg ing defe ndant had not

m ad e a prima facie case as to those issues. The State specific ally addre ssed those claims ref ere nced in paragraph 3, subsections (b), (c ), (d ), (e)
, (f)
, (g ), and ( l) of defe ndant’s amende d postconviction petition. Def ense counsel responde d “[the State] does not comment

on [subs ections] [(m)] and [(n)]. [The State] has agree d that [(a)], [(h)], [(j)]
, [(k)], and [( o )] there is prima facie evidenc e. So I just want t o t al k ab o ut the ones [the State] objects to.” Counsel was acc urate in his statement that the State did not comment on subsections (m) and (n). The rec ord ref

lects, howeve r, that th e S t at e only agree d that defe ndant had prese nted prima facie evidenc e on claims (a) , (h), a nd (j). The State never agree d that defe ndant had prese nted prima facie evidenc e on subs ec tions (k) and ( o ). These sections wer e never addre ssed by the State in its motion for a direc ted verdic t. (De fe n d an t’s amende d postconviction petition shows that sub s ection ( o ) ref erred to defe ndant’s section 116-3 reque st, and subsection (k) ref err ed to an inef

fec tive assistance of counsel claim re g arding counsel’s f

ailure to objec t to cer

tain testimony

of the DNA witness.) More over, the rec ord shows that defe nse counsel never prese nted evidenc e or testimony in relation to defe ndant’s section 116-3 reque st (subsec tion ( o )) at any point during the hearing. Acc ording ly
, the State

never had an opportunity to ref ute, or acquie sce to, defe ndant’s argument on his section 116- 3 reque st. ¶ 8 At the conclusion of the hearing, th e tri al co urt as k ed the parties to submit written arguments. The re cord r efle cts the State filed its argument on June 20, 2008. In the State’s written argument, it asser ted defe ndant did not meet th e re qu i re ments of section 116-3 beca use he “fa iled to articulate what form of DNA testing, not available at the time of trial, would result in materia l non-cumulative e vidence .” ¶ 9 The trial court’s docket sheet does not ref lect that defe ndant filed his written argument. The rec ord on appea l also lacks a copy of defendant’s argument. Howeve r, the court’s May 29, 2009, orde r denying defe ndant’s petition cites defe ndant’s written argument. In that order
, the court denied eac h of defe ndant’s claims, including para graph 3, subsections (a) to ( o ). The court denied defe ndant’s section 116-3 (subsec tion ( o )) reque st beca use he did not i d en tify a more acc urate form of testing, did not specify how that form of tes t i n g wa s unavailableat trial, and failed to identify any evidenc e conte mplated by section 116-3 that

-3-was not first tested a nd now should be. ¶ 10 In 2 0 09, defe ndant filed a pro se motion to rec onsider the d en i al o f h i s am en d ed postco n v i ct ion petition. Def endant’ s motion was written in g ener al terms and did not specific ally re fe rence any one issue from the postconviction proce eding s. The trial court denied de fenda

nt’s motion to reconsider. ¶ 11 This appea l followed.

¶ 12 I I . ANALYSI S ¶ 13 Def

endant appea ls the denial of h i s p o s t co n v i ct i o n p et ition and alleg es he was not provided rea sonable assistance of counsel beca use his counsel failed to provide sufficie nt information to the trial court in support of his section 116-3 reque st for additional DNA testing. The State argues that defe ndant was not denied the rea sonable assistance of counsel beca use he has no right to counsel in connec tion with his motion for fore nsic testing pursuant to section 116-3. Def

endant argues i n response that beca use hi s section 116-3 reque st was included in his a

mended postconviction petition, and not just in a section 116-3 motion, he

was e ntitled to the reasona ble assistanceof counse l.

¶ 14 A. Loveand the Right to Counsel ¶ 15 “[A] defe ndant may not complain of inadequate assistance of counsel if she or he had no right to counsel.” People v. Love
, 312 I ll. App. 3d 424, 426, 727 N.E.2d 680, 682 (2000). A defe ndant has a right to counsel wher e statute or the constitution provide for it. Love
, 312 I ll. App. 3d at 426, 727 N.E.2d at 683 (citing People v. Flores
, 153 I ll. 2d 264, 276, 606 N.E.2d 1078, 1084 (1 9 9 2 )). A defendant’s constituti onal right to counsel only applies during trial and during a defendant’s first appea l of right. Love
, 312 I ll. App. 3d at 426, 727 N.E.2d at 683 (citing Pennsylvania v. Finl ey , 481 U. S. 551, 555 (1987))

. Def endant does not have a constitutional right to counse l b ec au se his section 116-3 reque st was made afte r the resolution of h is trial and afte r his direc t appeal. Thus, any right to counsel defe ndant has must be provided by

statute. ¶ 16 In Love
, the defe ndant urg ed the cour t to find that a section 116-3 movant is e ntitled to the same rea sonable assistance of counsel as a postconviction petitioner. See Love
, 312 I ll. App. 3d at 427, 727 N.E.2d at 683. The Love court held it had no power to do so. Love
, 312 I ll. App. 3d at 427, 727 N.E.2d at 68 3

. T h e S ec o n d District there found, unlike a postconviction petitioner who is aff orded the assistance of counse l by the Post-Conviction Hea ring Act’s specific languag e (see 725 I L CS 5/122-4 (W es t 2006)), a section 116-3 movant is not entitled to counsel beca use the plain langua ge o f s ec t ion 116-3 does not provide a right to co un s el

. Love
, 312 I ll. App. 3d at 427, 727 N.E.2d at 683. Thus, the defe ndant could not alleg e he was provided inadequate assistance of counsel on his section 116-3 m otion wh er e he had no right to counsel. Love
, 312 I ll. App. 3d at 427, 727 N.E.2d at 683. ¶ 17 We find Love inapposite as the fac ts are distinguishable from defe ndant’s case

. In Love
, the defe ndant was convicted in 1988 and direc tly appea led his conviction. Love
, 312 I ll. App.

-4-3d at 425, 727 N.E.2d at 681. The defe ndant then filed a postconviction petition, which was

denied by the trial court a nd aff irmed in the appe llate cour t in 1997. Love
, 312 I ll. App. 3d
at 425, 727 N.E.2d at 682. Finally
, in 1998, the defe ndant filed a pro se section 116-3 motion reque sting new DNA testing and a motion for the appointment of counsel. Love
, 312 I ll. App. 3d at 4 2 5
, 727 N.E.2d at 682. The court appointed counsel and counsel filed an amende d

s ec t i o n 116-3 motion “that basica lly restate d the alleg ations in [the] defe ndant’s orig inal motion.” Love
, 312 I ll. App. 3d at 425, 727 N.E.2d at 682. Counsel repr esente d the defe ndant

on the matter, but ultimately conce ded at the hearing that the blood the defe ndant wished to be tested no longer exis ted, and the trial court denied the motion on that basis. Love
, 312 I ll. App. 3d at 426, 727 N.E

. 2 d at 682. The defe ndant appea led the denial of his petition, alleg ing counsel was ineffe ctive for conce ding the blood was no longe r available

. Love
, 312 I ll. App. 3d at 426, 727 N.E.2d at 682. ¶ 18 Her e, defe ndant filed a pro se postconviction petition and a separ ate pro se section 116-3 motion for new DNA testing on the same day

. Af t er defe ndant was appointed counsel to repr esent him o n his postconviction petition, defe nse counsel filed an amende d petition. Along with the amende d petition, de fense counsel filed a Rule 651(c) cer tificate (I ll. S. Ct. R. 651(c) (ef

f. Apr. 26, 2012)) stating he consulted with defe ndant on his petition and “made amendments to *** pleading s as nece ssary for adequate prese ntation of his contentions.” Counsel included defe ndant’s section 116-3 reque st in the amende d postconviction petition

an d d i d not file an amende d section 116-3 motion. Howeve r, at the proce eding s on th e postconviction petition, counsel did not prese nt evidenc e or make any arguments conce rning the exis tence of new DNA testing. Thus, the trial court denied defe ndant’s section 116-3 reque st in it s May

29, 2009, order

. ¶ 19 Applying Love would be unjust in light of the unique circ umstances of this case

. Neither Love , nor any

other decision we can find, addre sses the s ituation where a defe ndant files a
pro se postconviction petition and pro se section 116-3 motion, is then appointed counsel on the pos tconviction petition, an d co unsel amends the postconviction petition to include the defe ndant’s section 116-3 reque st but takes no further action to prese nt evidenc e or make arguments duringpostconviction proce eding s. ¶ 20 We rec ognize that, acc ording to Love
, defe ndant would not be entitled to counsel on an independe nt section 116-3 motion. Howeve r, afte r counsel was ap p o i nted, he made the decision to incorp o rate defe ndant’s section 116-3 claim into the amende d postconviction petition. At that point, defendant was no longer in a position to proce ed pro se on his separ ate section 116-3 motion. Had he made such a reque st, he may have risked waiving his right to c ounsel on the postconviction petition. See People v. French
, 210 I ll. App. 3d 681, 690, 569 N.E.2d 934, 940 (1991) (whe re a defendant expresses a desire to repr esent himself

on a postconviction petition, he thereby waives his right to appointed counsel). Thus, once the section 116-3 reque st beca me a part of the postconviction petition, defe ndant was entitled to the same leve l of assistancehe re ceive d on his other postconviction claims. ¶ 21 The State further arg ues that even if defendant’s section 116-3 claim was included in his postconviction petition, it was not the proper subject of such a petition, and thus, defe ndant

was not entitled to counsel on th e i s s u e. We decline to decide whether such claims are an appropriate subject of a postconviction petition. Howeve r, although not cited by either party ,

-5-our rese arc h has reve aled that when a m otion should not have been treated as a

postconviction petition, but the trial court elec ts to proce ed as if it wer e, it is incumbent upon appointed counsel to comply with his duties under the Post-Convi ction Hea ring Act and Rule 651. People v. W

illiams
, 23 I ll. App. 3d 988, 320 N.E.2d 4 1 1 (1974) (abstra ct of op.). Defense counsel, the State, and the court all proce eded with defe ndant’s section 116-3 motion as part of the amende d postconviction petition. Therefo re , co unsel should have complied with his duties under the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 to 122-8 (West 2006)) and Rule 651.

¶ 22 B. Rule 651( c) a nd ReasonableAssistance of Counsel ¶ 23 A p eti tioner is entitled to the rea sonable assistance o f co un s el i n p o s t co n v i ct i o n proceed i ng s. People v. Jennings
, 345 I ll. App. 3d 265, 271, 802 N.E.2d 867, 872 (2003). Rule 651(c) require s that counsel (1) consult with the defendant, (2) examine the rec ord, and (3) make any nece ssary amendments to the petitioner’s p r o s e p eti tion for an adequate prese ntation of petition er ’s contentions. I ll. S. Ct. R. 651(c) (ef f. Apr. 26, 2012). Our supreme court and appellate courts have held that “failure to make a routine amendment to

a postconviction petition that would overc ome a proce dural bar constitute s un re asonable assistance in violation of Rule 651(c) .” People v. Broughton
, 344 I ll. App. 3d 232, 241, 799 N.E.2d 952, 960 (2003); see also People v. Turner
, 187 I ll. 2d 406, 412-13, 719 N.E.2d 725, 729 (1999) (holding that postconviction counsel did not provide rea sonable assistance wher e his failure to amend the petition to include a claim of ineffe ctive assistance of appellate counsel for failure to raise petitioner’s claims on direc t appea l cause d petitioner’s claims to be barr ed by waiver). As it is unrea s o nable assistance to fail to make an amendment that would overc ome a proce dural bar, we conclude it is equally unrea sonable for postconviction counsel to amend a pro se petition in a way that cre ates a proce dural bar for a defendant and fail to follow through with the prese ntation of evidenc e and argument there o n

. W h i l e this argum en t wa s n ot advanc ed by either party , we find it is nece ssary to consider such an argument in the interests of r eac hing a just conclusion. ¶ 24 Her e, post conviction counsel amende d defe ndant’s pro se petition to include a section 116-3 request b u t fa i l ed to prese nt any evidenc e or argument in support of that request. In doing so, counsel has eff

ectively cre ated a p ro c e d

u ral bar, res

judicata
, to defe ndant’s section 116-3 motion. ¶ 25 Our appellate courts have conclude d that the statutory languag e of section 116-3 does not limitthe number of

motions a defe ndant m ay bring

. See People v. Bailey , 386 I ll. App. 3d 68, 72, 897 N.E.2d 378, 382 (2008). Although succe ssive motions are not impermissible, res judicata will bar a succe ssive mot i o n i f the exact same issue is raised in both motions. People v. B a rke r , 4 03 I ll. App. 3d 515, 522-23, 932 N.E.2d 1207, 1214 (2010). Be cause defe nse counsel included the section 116-3 reque st in the amende d postconviction petition, the trial court ruled on the merits of the issue, even though counsel seeming ly abandone d the issue during th e p roce eding s. (It appea rs from the record that counsel mi stakenly believed the State had acquie sced as to this issue at the postconviction hearing. Howeve r, as discussed

ea rl i er , the State never made a motion for a direc ted verdic t on subsection ( o ), nor agree d

-6-defe ndant had prese nted prima facie evidenc e on the issu e.) Any succe ssive motion

defe ndant files will presumably contain the exact same issue raised in his first motion, as it

was never truly litigated. Were we to af fi rm the denial of defe ndant’s amende d postconviction petition, defe ndant may not be able to preva il on a succe ssive motion beca use he would be barr ed by res judicata

. Thus, counsel’s aff irmative dec i s i o n t o include the section 116-3 reque st in the amende d petition has cre ated a proce dural bar for defendant to bring a s u cc es sive section 116-3 motion. We conclude such action eff ectively rende red counsel’s a ssistance unre asonable as to this issue. ¶ 26 Acc ording ly
, we reve rse the trial court’s denial of defe ndant’s amende d postconviction petition insofar as the section 116-3 reque st for new DNA testing. Def endant asks this court to order the trial court to allow new DNA testing to be perf ormed. Howeve r, befor e the trial court allows new testing to be perf ormed, defe ndant must show he has met the require ments of section 116-3 and that he has made a prima facie case th at i d en t ity was at issue at trial. See People v. Gibson
, 357 I ll. App. 3d 480, 484-85, 828 N.E.2d 881, 885 (2005); 725 I L CS 5/116-3 (West 2010). Be cause defe ndant was not g iven such an opportunity due to counsel’s

unrea sonable assistance
, we rema nd to the trial court for further proceeding s and a deter mination of whether

defe ndant has satisfied therequire ments of sec tion 116-3.

¶ 27 I I I . CONCLUSI ON ¶ 28 For the rea sons stated above, we reve rse the trial court’s denial of defendant’s ame nded postconviction petition insofar as the section 116-3 reque st and rema nd with direc tions. We aff irm the trial cour

t’s judgme nt in all other respe cts.

¶ 29 Affir

med in part a

nd reve rsed in par

t; cause r emande d with directions.

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