NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
20 2 1 IL App ( 3d ) 190101

- U O rder filed March 18, 2021

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT 2021
THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff

- Appellee, ) ) v. ) ) JESSE R. PEREZ , ) ) Defendant -Appellant. ) Appeal from the Circuit Court of the 12th Judicial Circuit, Will County , Illinois , Appeal No. 3-19-0101 Circuit No. 08- CF -2446 Honorable Carmen Julia Goodman, Judge, Presiding.

____________________________________________________________________________ JUSTICE LYTTON delivered the judgment of the court

. Justices Holdridge and Schmidt concurred in the judgment.

____________________________________________________________________________ O RDER ¶ 1 Held : The circuit court properly denied defendant leave to file a successive postconviction petition. ¶ 2 Defendant, Jesse R. Perez, appeals from the Will County circuit court ’s denial of hi s motion for leave to file a successive postconviction petition. Defendant argues the court erroneously denied his motion because it established a colorable claim of actual innocence based on the results

o f DNA testing. We affirm.2 ¶ 3 I. BACKGROUN D ¶ 4 T he State charged defendant by indictment with two counts of predatory criminal sexual assault of a child (720 IL C S 5/12

- 14.1(a)(1) (West 2008)). Count I alleged that defendant inserted his penis into M.G. ’s vagina. Count II alleged that defendant placed his mouth on M.G. ’s vagina

. The matter proceeded to a jury trial

. ¶ 5 M.G

. testified that she was six years old when defendant sexually assaulted her and nine years old at the time of trial

. When the assault occurred , defendant was in a relationship with M.G.’s mother , Judith

. Prior to the assault , defendant brought M.G. to his residence. The re , defendant inserted his penis into M.G.’s vagina and mov ed it back and forth. Defendant also put his mouth on M.G.’s vagina. Afterward, d efendant attempted to wash blood out of M.G.’s underwear with soap and water. Defendant then returned M.G. to her home. ¶ 6 Judith testified that after defendant left her residence, she collected M.G.’s dirty clothes from the bathroom. She saw blood on the underwear that M.G. had worn earlier that day

. 1 Later that night, M.G. reported to Judith, that defendant had asked her to remove her clothes. D efendant then spit on M.G.’s vagina and she felt “something really hurting her .” During the sexual assault

exam ination the following day, Judith noticed blood on M.G.’s new underwe ar . 2 ¶ 7 Two day s after the assault , a doctor conducted a physical exam ination of M.G. The doctor observed “a tear through the hymen that extended down into the lower part of [M.G.’s ] genital
area.” He observed M.G.’s hymen to be swollen, red, and hemorrhagic.

1 The sample taken from the underwear M.G. wore the day of the assault was later identified as Exhibit 1H1. 2 The sample taken from the underwear M.G. wore after the assault wa s later identified as Exhibit 1G1.3 ¶ 8 A nurse conducted a sexual a ssault examination and collected the underwear that M.G. had

wor n on the day of the assault and the underwear M.G. had wor n the day after the assaul t

. A forensic biologist examined the two e xhibits and determined that neither contained semen or saliva. The biologist did not conduct DNA testing on either exhibit. ¶ 9 The jury found defendant guilty of both counts of predatory criminal sexual assault of a child. The court sentenced defendant to terms of 49 years’ and 38 years’ imprisonment, to be served cons ecutively. On direct appeal, t his court affirmed defendant’s convictions and sentences. People v. Perez , 2014 IL App (3d) 120837-U, ¶ 43. ¶ 10 While defendant’s direct appeal was pending , defendant filed a pro se motion for forensic testing pursuant to section 116

- 3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116 -3 (West 2012)). Defendant requested forensic DNA testing of the two pairs of M.G.’s underwea r . The circuit court granted the State’s motion to dismiss. On July 21, 2016, this court rever sed the circuit court’s dismissal and remanded with d irections for the circuit court to enter an order for forensic testing. People v. Perez , 2016 IL App (3d) 130784 , ¶ 40. ¶ 11 On April 24 , 2018, defendant filed a motion to compel the State to comply with the

a ppellate c ourt’s mandate to conduct forensic testing. Defendant alleged that a February 28, 2017, DNA report was deficient in showing that the State had fully complied with the order

. He noted that the DNA report did not include the sample’s origin or whether the lab oratory tested other evidence. ¶ 12 Defendant attached to his motion an Illinois State Police laboratory r eport dated February 28, 2017. The report indicated the laboratory compared defendant’s DNA to the male DNA identified in Exhibit 1H1

. Defendant’s DNA matched six loci from the sample. The report further stated, “[defendant] cannot be excluded from having contributed to the male DNA profile4 identified in Exhibit 1H1. Approximately 1 in 930 thousand White, 1 in 3.0 million Black or 1 in 4.2 million Southwest Hispanic unrelated individuals cannot be excluded as having contributed to this male DNA profile at the [six] loci” identified. ¶ 13 T he State filed a motion to dismis s defendant’s motion to compel DNA testing. In the motion, th e State referenced the December 15, 2016, lab oratory report and indicated

“ [t] hat a human female DNA profile was identified in 1G1 which matched the DNA profile of the victim. A mixture of human DNA profiles was identified in Exhibit 1H1 that was interpreted as a mixture of two people. Assuming the mixture was a mixture of the victim and another individual, a male DNA profile was identified at

seven loci. The profile was not suitable for entry into the Combined DNA Index System. The report concluded that upon submission of male standards, further analysis can be conducted to make comparisons to the minor DNA profile identified in 1H1.”
The State did not file the referenced December 15, 2016, D NA report with its motion to dismiss

. The State also referenced the February 28, 2017 , report that “[d]efendant could not be excluded from having contributed to the male DNA profile identified in Exhibit 1H1.” ¶ 14 Before the court ruled on defendant’s motion to compel, defendant filed a motion for leave to file a successive postconviction petition alleging his actual innocence. He argued that the February 28, 2017, DNA report showed his DNA only matched six loci of the total identified in Exhibit 1H1, and th erefore he “was not a contributor of the DNA evidence that was discovered in
1H1 .” ¶ 15 D efendant subsequently filed a motion for leave to file an amended successive postconviction petition. Defendant alleged new claims of prosecutorial misconduct, ineffective5 assistance of trial counsel and appellate counsel, and sufficiency of the evidence in addition to his cl aim of actual innocence. ¶ 16 T he circuit court granted the State’s motion to dismiss the motion to compel and denied defendant ’s motion for leave to file a successive postconviction petition. Defendant appealed. ¶ 17 II. ANALYSIS ¶ 18 Defendant argues the circuit co urt erred by denying his motion for leave to file a successive postconviction petition , because his petition alleged a colorable claim of actual innocence. Specifically, the DNA report excludes defendan t as a contributor and shows a third -party contributor to the sample collected from M.G.’s underwear. The State conced e s that the DNA evidence is new and noncumulative. However, it disagrees with defendant’s conclusion that the DNA report excludes defendant as a contributor. The State argues that the DNA evidence fails to raise a probability of changing the results on retrial. W e agree. ¶ 19 The Post

- Conviction Hearing Act (Act) (725 ILCS 5/122 -1 et seq. (West 201 8 )) permits a criminal defendant to challenge the proceedings which resulted in his conviction by asserting that

“ there was a substantial deni al of his or her rights under the Constitution of the United States or of the State of Illinois or both.” Id. § 122- 1(a)(1). The Act contemplates the filing of a single postconviction petition. People v. Robinson , 2020 IL 123849, ¶ 42

. A defendant must obtain leave of court to file a successive postconviction petition. People v. Wrice , 2012 IL 111860, ¶ 47; Robinson , 2020 IL 123849, ¶ 43; 725 ILCS 5/122

- 1(f) (West 2018). To obtain leave , the defendant must allege either (1) “cause and prejudice for the failure to assert a postconvict ion claim in an earlier proceeding” or (2) “a fundamental miscarriage of justice based on actual innocence.” Robinson , 2020 IL 123849, ¶ 4 2 (citing People v. Edwards , 2012 IL 111711, ¶ 23). “A request to file a successive petition based on actual innocence is reviewed under a higher standard than that6 applicable to the first stage for an initial petition, which only requires that the petition is not frivolous or patently without merit.” Id. ¶ 43. ¶ 20 T o succeed on a claim of actual innocence, the defendant must present “new, material, noncumulative” evidence that is so conclusive it would “probably change the result on retrial

. ” People v. Coleman , 2013 IL 113307, ¶ 84 (quoting People v. Silagy , 116 Ill. 2 d 357, 368 (1987) , quoting People v. Molstad , 101 Ill. 2 d 128, 134 (1984) ). “Probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the prior evidence along with the new evidence.” Robinson , 2020 IL 123849, ¶ 48. “A request for leave to file a successive petition should be denied only where it is clear from a review of the petition and supporting documentation that, as a matter of law, the petition cannot set forth a colorable claim of actual innocence. ” Id. ¶ 44. T hat is, a defendant is entitled to leave when the “documentation [supporting the petition] raises the probability that it is more likely than not that no reasonable juror would have convicted the petitioner in light of the new evidence.” Id. We review de novo a circuit court’s denial of a motion for leave to file a successive postconviction petition. Id. ¶ ¶ 39-
40. ¶ 21 As the parties agree that the DNA evidence is new and noncumulative, we limit our review to whether this evidence is so conclusive that it would probably lead to a different result. T he February 28, 2017, DNA report expressly stated that “[defendant] cannot be excluded from having contributed to the male DNA profile identified in Exhibit 1H1.” (Emphasis added.) While defendant correctly notes that the report is based on only a partial DNA match, the comparison of defendant’s DNA to the sample matched only six out of seven previously identified loci, the partial nature of the match does not conclusively exclude defendant as a contributor or affirmatively suggest a third

- party contributor

. We conclude that defendant’s only supporting documentation7 failed to set forth a colorable claim of actual innocence because it directly conflicted with his assertions. Therefore, this report is very unlikely to lead to a different result, and the court did not err in denying defendant leave to file a successive postconviction petition

. ¶ 22 III. CONCLUSION ¶ 23 The judgment of the circuit court of Will County is affirmed

. ¶ 24 Affirmed.