1st Division

Filed: 4-23-07 No. 1-05-0515 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) Nos. 82 C 12459, 82 C 12460 ) GREGORY MOORE, ) Honorab le ) Paul P. Bie

bel, Defend ant-App ellant. ) Judge Presi ding. JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Defend ant Gregory

Moore ap

peals fr om an orde

r of the c ircuit co

urt of Cook

County entere d on Febr

uary 24, 2005, d

eny ing his pro se

motion for deoxyribonucleic acid ( DNA) testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 I LCS 5/116-3 (2004)). On appeal, defendant contends that ( 1) the trial court erred in deny ing his motion for DNA testing because the identity at issue requirement of section 116-3 is unconstitutional as applied to him and (2) that the trial court violated defendant’s due proc ess rights by r uling on issues beyond the understood scope of the hearing which resulted in the F ebruary 24, 2005, dismissal. We affir

m. BACKGROUND Accord ing to the memorandum opinion

and orde r of the tr ial cour t the backgroun

d to this case is a s follows:No. 1-05-0515

2

At some time

betwee n midnigh

t and 1 a.m ., on Octo

ber 27, 1 982, T.R. w as retur ning to her apartment in the Lake view neighborhood of Chicago. The de fendant grabbed her, put a g un to her head, and forced her into her a partment. While there, defendant repeatedly raped T.R. and then compelled her to perform oral sex while defendant held a handgun directed at her hea d. On November 23, 1982, defendant entered the a partment of L.M. in the Lincoln Park neighborhood of Chicago around 6:55 p.m. The de fendant pointed a gun at her head, de manded money and jewe lry. After L .M. gave him the items he demanded, defendant bound, g agged, and raped her. On Dece mber 10, 1 982, at ar

ound 8 p.m. , K.D. wa s return ing to he r apart ment loca ted in the Wrig ley

ville neig hborhood in Chicag o. The de fendant exited a ve

hicle dr iven by Virgie Peterson and approached K.D. Defe ndant held a silver handgun to K.D.’s head and de manded her money. He

took approximately $60 and was driven a way by Peterson in the same vehicle. Only four hour

s later, d efenda nt and Pete

rson robb ed R.K. in t

he Li ncoln Par k neigh borhood in Chicago with the aid of the same silver handgun. R.K. was walking in a gangway of her building when defendant approached he r from behind, put his arm around her shoulders, led her to a lower-level apartment and pushed her against a wall. Defendant put the silver gun to her hea d, told her to

stay quiet and demande d her mone

y a nd weddin

g ring . When R.K. refuse d to surrender her wedding ring , a struggle ensued during which defendant tried to remove the ring. R.K. screamed and defendant threate ned to shoot her. He took her purse and fled. Defendant was subsequently arrested with Peterson in the south side of Chicago and charg ed with the se crime s. He adm itted his g uilt to polic e offic ers afte r being found inNo. 1-05-0515

3

possession of R.K.’s purse. Defendant was convicted by a jury for the

armed robbery

of R.K. and sentenced to the Illinois Depar tment of Corrections for 30 years on February 27, 1984. He did n ot tes tify at th e tria l but admit ted hi s guil t at se ntenc ing. Defendant pleaded guilty to the armed robbery

of K.D., the armed robbery and rape of L.M., and the rape of T.R. Pursuant to def endant’s guilty

plea on these charges and de fendant’s previous conviction for the armed robbery of R.K., defendant was sentenced to 20 y ears for the armed robbery

and rape of L.M. c oncurrent with 20 ye ars for the rape of T.R. and 20 y ears for the armed robbery

of K.D. in the Illinois Department of Corre ctions on July 24, 1984, to run consecutively with 30 y

ears previously

given for a total of 50 y

ears in the Illinois Department of Correct ions. On December 23, 2002, the defendant filed a pro se request for DNA testing on the rape cases pursuant to section 116-3 (725 ILCS 5/116-3 (West 2004)). The trial court appointed the Cook County Public Defender to re present the indigent defendant on October 2, 2003, 18 years after his conviction. That same day , defendant filed an amended motion requesting D NA testing and challenged the voluntariness of his guilty plea arguing that it was “base d upon an unfulfilled promise of leniency , and exoneration of the rape charg es on a later date.” The trial court heard oral arg ument from both defense counsel and the State relating to the motion for DNA testing on December 22, 2004. On Fe bruary 24, 2005, the

trial court denied defendant’s motion and issued a 12-page memora ndum opinion and order setting forth the reasons for the denial. This appeal followed. ANA LYSISNo. 1-05-0515

4

On appeal, defendant first contends that the trial court e rred in deny

ing his motion for DNA testing because the identity at issue requirement of section 116-3 is unconstitutional as applied t o him. Spec ifically

, defend ant arg ues that s ubsection (b)(1)

of section 116-3 is unconstit utional be cause it

bars def endant a nd all thos e similar

ly s ituated w

ho pleade d guilty

to crimes before the development of DNA tec hnology fr

om filing motions for DNA testing. A trial court’s ruling on a motion brought pursuant to section 116-3 of the Code of Criminal Procedure is reviewed de novo

. People v . Hocke nberry , 316 Ill. App. 3d 752, 755 (2000). R

eview in s

uch case s is de novo because the trial court’s decision reg arding a section 116-3 motion is not based upon its assessment of the credibility of the witnesse s but on its review of the pleadings and the trial transcripts. Hocken berry , 316 Ill. App. 3d at 755. “Section 116-3 of the Code of Criminal Procedure of 1963 became effective January

1, 1998. I ts purpose

is to provid

e an ave nue for c onvicted

defenda nts who mai

ntained t heir innocenc e to test ** * genetic mater ial capa ble of pr oviding new and dr

amatic e vidence materia lly relevant to the question of the defendant’s actual innoce nce.” People v. Henderson , 343 Ill. App. 3d 1108, 11 14 (2003) . Section 1 16-3 prov ides: “§ 116-3. Motion for fingerprint or forensic testing not available at trial regarding actua

l innocence. (a) A defendant may

make a motion before the trial court that entered the judgment of conviction in his or her case for the per formance of fingerprint or forens ic DNA testi ng, in cludi ng comp ariso n anal ysis of gen etic m arker gr oupi ngs of the evidence collected by criminal justice agencies pursuant to the alleg edNo. 1-05-0515

5

offense , to those o f the def endant, t o those of other forensic e

vidence , and to tho se maintained under subsection (f) of Section 5-4-3 of the Unified Code of Corrections [730 IL CS 5/5-4-3], on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the tec hnology for

the testing was not available at the time of trial. Reasonable notice shall be serve d 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 sufficient to establish that it has not been substituted, tampere d with, re

placed, or alter

ed in any materia l aspect

. (c) The trial court shall allow the testing under re asonable conditions designed to protect the State’s interests in the integrity of the evidence and the testing process upon a de

terminat ion that: (1) the r esult of the testing

has the sc ientific

potentia l to produce new, noncumulative evidence mater ially relevant to the defenda nt’s asse rtion of a ctual innocence

even thou

gh the r esults may not comple

tely exonerat e the def endant;No. 1-05-0515

6 (2) the testing requested employ s a scientific method generally accepted within the relevant scientific community .” 725 IL CS 5/116-3 (West 2004). Defendant urges us on appea l, as he urged the trial court, to find the identity at issue require ment rec ited in sub section ( b)(1) of section 1 16-3 unc onstitutional. Howe ver, it is well established that c ases shou ld never be decid ed on con stitutiona

l ground s if alter

nate mea ns exist, reaching constitutional issues only as a last resort. People v. Lee , 214 Ill. 2d 476, 482 (2005) (“courts should not compromise the stability of the le gal syste m by declaring

legislation unconstitutional when a particular case does not require it”)

. As the trial court correctly noted, this case can be decided without reaching the constitutional issue. The trial court correctly held that defendant was not entitled to DNA testing because he failed to meet the require ment of subsection (b)(2) of section 116-3. Subsection (b)(2) requires the defendant to establish a suf ficient chain of custody

to offer proof that DNA was collected from the crime scene, ha s not been altered, and is in the possession of the proper authorities. People v. Johnson , 205 Ill. 2d 381, 394 (2002). I n examining the chain of custody requirement, courts look to proof of delivery of the evidence, presence and sa fekeeping. People v. Gibson , 287 Ill. App. 3d 878, 882 (1997). Defendant failed to meet the chain of custody requirement. He alleges in his section 116- 3 motion that “to the best of my belief, the mate rial collected is in the possession of the proper authorities and has not been tampered with, replaced, or altered in any

material respect.” As the trial judge correctly

noted, these conclusory

statements fail to satisfy the cha in of custodyNo. 1-05-0515

1 The issue of whether the identity at issue requirement of section 116-3 is constitutional is currently pending

before the Illinois Supreme Court. People v . O’Conne ll , 365 Ill. App. 3d 872 (2006), appeal allowed , 221 Ill. 2d 662 (2006). 7 prerequisite and essentially mirror the allegations made by the defendant in People v. Jones , 334 Ill. App. 3d 61, 64-66 (2002). Here , as in Jones , defend ant has ma

de absolu tely no showing

as to where the items are now, more than 20 y ears after his arrest, nor done any thing to establish a chain of custody f

rom the Chicago police department. Defe ndant does not allege with any specificity if the pr

oper authorities took DNA, when the DNA was rec eived, or mention anything pertaining to the current condition of the DNA. Ther efore, the trial court properly denied defendant’s section 116-3 motion for DNA testing bec ause the defendant failed to meet the requirements of subsection (b)(2) of the statute. We nevertheless address the defendant’s ar gument that subsection (b)(1) of section 116-3 is unconst

itutional. 1 Defendant argues that the identity at issue requirement of subsection (b)(1) is unconst

itutional a s applied

to him bec ause he c ould not knowingly waive a right th at he did not know existed. In other words, defendant a rgues that he could not knowingly waive his right to DNA testing when he entered his guilty plea because DNA testing did not exist at the time of the waiver. We fi rs t e xa mi ne wh et he r s ub se ct io n ( b) (1 ) i s c on st it ut io na l o n i ts fa ce . S ta tu te s c ar ry a very strong

presumption that they are constitutional as written, and the party challenging the constitutionality of a statute bears the bur den of rebutting this presumption. People v.No. 1-05-0515

8

Kimbrough , 163 Ill. 2d 231, 237 (1994). I t is unclear whether the defendant cha llenges the legislation under due process or equal protec tion grounds. Therefore, we addr ess both. “The constitutional right to equal protection of the law gua rantees that the State must treat similarly situated persons in a similar manner.” Kimbrough , 163 Ill. 2d at 237. A law that implicate s neither

a suspect classif

ication nor a fund

amental r ight is su bject to the rational basis

test. People v

. Shephar d , 152 Ill. 2d 489, 500 (1992). Under this test, the statute need only be rationally rela

ted to a legitimate state goal. Shephard , 152 Ill. 2d at 500. Further, our re view under the rational basis test is limited and generally deferential. Shephard

, 152 Ill. 2d at 500. The test u sed to det

ermine w hether a statute vi olates due proce ss is “ ‘wh ether th e statute is reasonably de signed to remedy the evils the legislature has determined to be a thre at to the public health, safety

and general welfare .’ ” Kimbrough , 163 Ill . 2d at 242, q uoti ng People v. Bradley , 79 Ill. 2d 410 , 417 ( 1980) , quot ing Heimgaertner v. Benjamin Electric Manufacturing Co. , 6 Ill. 2d 152, 159 (1955) . Althoug h expresse d in diffe

rent lan guag e, the te sts used to determine the constitutionality of a statute unde r due process and equal protection are identical. Kimbrough , 163 Ill. 2d at 242. As is the case with challeng es brought under equal protection, the rational basis test is applicable if the legislation does not implicate a fundamental rig ht under a due process challenge. Kimbrough , 163 Ill. 2d at 242. Because section 116-3(b)(1) implicates neither a suspect classification nor a fundamental rig ht, we apply the ra

tional basis test. As noted, the purpo se of section 116-3 “is to pro vide an a venue fo r convic ted defe

ndants who maintained their innocence to test *** genetic mate rial capable of providing new and dramatic evidence materially relevant to the question of the defendant’s actual innoce nce.”No. 1-05-0515

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Henderson , 343 Ill. App. 3d at 1114. “Balanc ed [against] this interest in exonerating innocent persons wrongly

convicted is the interest in promoting the finality of criminal judgments.” People v. Pursley , 341 Ill. App. 3d 230, 237 (2003). We need only conceive of one potential basis for subsection (b)(1) of section 116-3 to uphold its constitutionality. Pursley , 341 Ill. App. 3d at 237. Conceivably, the leg islature included subsection (b)(1) to restrict the availability of DNA testing to those who maintained their actual innocence at trial because it sought to guard against frivolous requests by limiting the remedy to those c ases where identity was truly at issue. People v . Urioste , 316 Ill. App. 3d 307, 313 (2000). Moreover, it is entirely irrelevant for constituti onal purp oses whe ther our conceiv ed reas on for the challen ged leg islation a ctually motivated the legislature. Pursley , 341 Ill . App. 3d at 2 37, qu otin g People v . McLaugh lin , 324 Ill. App. 3d 909, 915 (2001). According ly, we are not persuaded by

defendant’s argument that section 1 16-3(b) (1) viola

tes his eq ual prote ction rig

hts or his d

ue proce ss right s. Having determined that su

bsection (b)(1) of section 116-3 (7 25 IL CS 5/116-3(

b)(1) ( West 2004)) is constituti onal on its

face, w e now exam

ine whether subse ction (b) (1) is unconstit utional a s applied

to this def

endant. D efenda

nt argu es that the

trial cou rt’s den ial of his DNA testi

ng req uest viola ted his due

process rights b ecause

defenda nt could no t knowing ly waive what he did not know existed. We disagree. It is well settled that a defendant e ntering a guilty

plea must be fully awa

re of the direct consequences of the plea. People v. Williams , 188 Ill. 2d 365, 371 (1999). “I f a consequence of the plea is collateral, then the defendant need not be advised of it before entering the plea ” and “defendant’s knowledge of the collateral consequences of a g uilty plea is not a prere quisite to theNo. 1-05-0515

10

entry of a knowing and intelligent plea.” Williams , 188 Ill. 2d at 371. Furthermore, “ Future or contemplated, but uncertain, consequences ar e irrelevant to the validity of the guilty plea .” Williams , 188 Ill. 2d at 371. A criminal court is in no position to advise a defendant on a ll the ramifications of a guilty

plea personal to the defendant because the consequences of committing an offense are so numerous and log ically unfore seeable that to require more would impose upon the trial court an impossible burden. Williams , 188 Ill. 2d at 371. A “court’s obliga tion to ensure that a de fendant

understa nds the dir

ect cons equenc es of his p lea enc ompasses only those consequences of the sentence that the trial judg e can impose.” Williams , 188 Ill. 2d at 371. A court is u nder no o bligation to advise

the defe ndant of c ollatera

l consequ ences in cluding “ ‘loss of public or priva te employ ment, ef fect on i mmigrat ion status, voting r

ights, po ssible au

to license suspension, possible dishonorable discharge from the military, or anythin g else .’ ” (Emphasis in original.) Williams , 188 Ill . 2d at 372, q uoti ng Cox v. Sta te , 16 Kan. App. 2d 128, 130, 819 P. 2d 1241, 1243 ( 1991) , quot ing State v. Heitzman , 209 N.J. Super 617, 622, 508 A. 2d 1161, 1164 (1986). Defendant’s due process rig hts were not violated here because def endant need not have been aware of the waiver of his DNA testing rights, a consequence w hich was collateral to the entry of his g

uilty plea. Having determined that su

bsection (b)(1) of section 116-3 is c onstitutional both on i ts face and as applied to this defendant, we now turn to the impac t defendant’s guilty

plea had on his ability to seek DNA testing. D efendant cannot satisfy the identity at issue require ment of subsection (b)(1) of section 116-3 because he pled guilty to the cr

ime. “A plea of guilty

is more than a confession which admits that the accused did various acts; it is itself a conviction; nothingNo. 1-05-0515

11

remains but to give judgment and determine punishment.” Boykin v. Alabama , 395 U.S. 238, 242, 23 L. Ed. 2d 274, 279, 89 S. Ct. 1709, 1711-12 (1969). “ ‘When a guilty plea is fairly a

nd understa ndingly made, it a

dmits ever

y ma terial f act alle ged in the indictme nt and all the eleme

nts of the crime with which an accused is leg ally charg ed, and obviates the need of any proof whatsoever.’ ” People v. Young , 25 Ill. App. 3 d 629, 634 (1 974), quot ing People v. Wilfong , 19 Ill. 2d 406, 409 (1960). A guilty plea necessarily

admits identity because a conviction cannot stand if identification was not proved bey ond a reasonable doubt. People v. Moreno , 18 Ill. App. 3d 347, 348 (1974). There is a split among the districts of our appellate court a s to whether a defendant can seek DNA testing under section 116-3 notwithstanding de fendant’s guilty plea at trial. One Illinois appellate case ca

tegorically

bars a defendant from the opportunity to later request DNA testing when that defendant has pleaded g uilty to the crime. People v. Lamming , 358 Ill. App. 3d 1153 (5th Dist. 2005), holds that the plain and unambiguous language section 116-3(b)(1) presuppo ses the existence o f a trial and a conviction r

esulting from that trial, be cause without a trial, there is no way

to satisfy the identity

at issue requirement. Another Illinois case reve rsed a trial court’s decision to deny DNA testing when a defendant pleaded guilty

but was not sure of his guilt. People v . O’Conne ll , 365 Ill. App. 3d 872 (1st Dist. 2006), appeal allowed , 221 Ill. 2d 662 (2006), involved a defenda nt who was convicted of sexual abuse and murder. The defendant enter ed a guilty

plea while contending that he had no memory of the off

ense, presented testimony that he was drunk at the time of the offense, and offered evidence that he often did not re member what he did when he was drunk. O’Connel l ,No. 1-05-0515

12

365 Ill. App. 3d at 874. An expert confirmed that alcoholics c ould experience such a pattern of memory loss. O’Connel

l , 365 Ill. App. 3d at 874. The appellate c ourt remanded the case to the trial cou rt beca use it was clear that by

enterin g his g uilty plea the defenda nt did not in

tend to concede identity

. O’Connel l , 365 I ll. App. 3d

at 878. Ra

ther, he entere d the gu

ilty plea bec ause the evidence against him seemed overw helming. O’Connel

l , 365 Ill. App. 3d at 878. We are not prepared to hold, as the Fifth District of our cour t held, that a guilty plea categorically

divests a defendant of the opportunity to later request DNA testing. However, we also find O’Connel

l inapplicable to this case. As noted, O’Connel l involved a situation where a defendant pleaded guilty

to the crimes of sexual assault and murder while protesting his actual guilt. Nothing in the record indicates that the defe ndant in this case ever protested his actual guilt prior to entering his guilty plea. We therefore hold that the trial court corre ctly determined that defendant could not satisfy section 116-3(b)(1). Defendant also argues that his g uilty plea was involuntary because it was based on an “unfulfilled promise” of leniency . Defendant suggests he wa s promised that he would receive three 20-year prison terms to run concurrently with the 30-year

prison term he received for the armed robbery

of R.K. in exchange for his guilty plea to the rapes. Allegedly, defendant later learned counsel had misinformed him and he was sentence d to a consecutive term of imprisonment causing defendant to receive a total prison term of 50 yea rs. We are not persuaded by d efenda nt’s arg ument. As the trial court noted, the defendant failed to object to the plea a greement in open court when the sentencing judge sente nced him to three 20-y

ear concurrent prison terms to runNo. 1-05-0515

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consecutively with the 30- year pr ison term he received for the armed robbe ry of R.K. ca

using defendant to serve a total prison term of 50 y ears although he was expecting a total ter m of 30 years a ccording to the alleged promise of leniency. The

defendant also waited more than 20 ye ars to ch alleng e the volu ntarine ss of his ple a. We ther efore f ind that the

defenda nt’s gui lty plea wa s knowing ly a

nd volunta

rily made and

defenda nt’s cha llenge to the ple a dising enuous. Defend ant’s final arg

ument is tha

t the tria l court vio lated de fendant ’s due pr ocess ri ghts by ruling on issues be

yond the understood scope of the hearing, which resulted in the Fe bruary 24, 2005, dismissal. Defendant claims that the oral arguments held on Dec ember 22, 2004, were he ld so le ly t o d et er mi ne th e c on st it ut io na li ty o f s ub se ct io n ( b) (1 ) o f s ec ti on 11 6- 3. Sp ec if ic al ly, defendant claims that it was error for the trial cour t to reach the issue regarding the sufficiency

of defenda nt’s sec tion 116-3 motion for DNA testi

ng bec ause def

endant w as not pre

pared to address that issue at oral argument. The record does not indicate that the Dece mber 22, 2004, oral argument was set only for argume nts reg arding

the const itutionali ty o f subsec tion (b)( 1) of section 116-3 . If t here is evidenc e indica

ting tha t the hea ring wa s restricted to tha

t legal issue, de fendant

has faile d to provide it in the record of this case. “The ap pellant h as the bur

den of pr oviding a sufficie ntly complete record on appea l so that the reviewing court is fully informed regarding the issues to be r esolved; in the absence of a complete record on appeal, it is presumed that the trial court’ s judgment conforms to the law and has a sufficient factual basis.” People v . Odumuy iwa , 188 Ill. App. 3d 40, 45-46 (1989). The only evidence

of the restriction on the hearing was def ense counsel’s assertion, contained in theNo. 1-05-0515

14

trial transcript, that the hearing was restricted to the issue of the constitutionality of subsection (b)(1) of section 116-3. However, also in the trial tra nscript is defense counsel’s argument regarding the issue of ac

tual innocence and the availability of DNA technology

at the time of defendant’s guilty

plea. Moreover, defense counsel ha d more than a ye ar to conduct discovery and seek out DNA, i f it existed

in this cas e. As note d, the pub lic defe nder wa s appointe d to defendant’s case on October 2, 2003, and or al argument on defendant’s section 116-3 motion was held on December 22, 2004. I t does not conclusively appe ar from the transcript that the hearing on Dece mber 22, 2 004, was r

estricte d solely

to the con stitutiona

l question , nor doe s it appear that defendant did not have ample opportunity to seek discovery

to satisfy the chain of custody element of se ction 116-3. Accordingly, we find defendant’s argument not per suasive. Defendant has made no argume nt in his brief that the trial court erred when it ruled that defendant’s section 116-3 motion was insufficient because de fendant failed to allege any new evidence demonstrating defendant’ s actual innocence. As a consequence , the issue of whether the trial court erred in ruling that the defe ndant’s motion was insufficient is waived. 210 Ill. 2d R. 341 (h)(7). CONCLUSIO N For the foregoing r

easons we affirm the judgment of the circ uit court of Cook County. This court finds that defendant’s motion for DNA testing was prope rly denied by

the trial court because defendant failed to satisfy the chain of custody

requirement of section 116-3. This court also finds that subsection (b)(1) of section 116-3 is constitutional both on its face and as applied to this defendant. We find that the trial court did not err in addressing the suffic iency of theNo. 1-05-0515

15

defendant’s motion because nothing in the recor d indicates that the scope of the hearing wa s restricted to argument reg arding the constitutionality of subse ction (b)(1) of section 116-3. Affirmed. CAHIL L and GARCI

A, JJ., concur.