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2018 IL App (2d) 160432
 

No. 2-16-0432
 

Opinion filed August 28, 2018 

IN THE 

APPELLATE COURT OF ILLINOIS 

SECOND DISTRICT 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Du Page County. 

) 

Plaintiff-Appellee,	 ) 

) 

v. ) No. 78-CF-317 

) 

PHILLIP E. LaPOINTE, ) Honorable 

) Robert A. Miller, 

Defendant-Appellant. ) Judge, Presiding.
 

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. 

Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion. 

OPINION 

¶ 1 In 1978, defendant, Phillip E. LaPointe, pleaded guilty to murder (Ill. Rev. Stat. 1977, ch. 

38, ¶ 9-1(a)(1)) and was sentenced to life imprisonment. In 2016, having filed an unsuccessful 

direct appeal and numerous unsuccessful collateral actions, he moved under section 116-3 of the 

Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2016)) to allow fingerprint and 

DNA analysis of certain items of evidence that had been secured in relation to his plea and 

conviction. The State did not respond. The trial court denied the motion as barred by 

res judicata. On appeal, defendant contends that res judicata did not bar his motion and that he 

made a prima facie case for testing the evidence. We reverse and remand. 
 

 

 

 

 

 

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¶ 2 On March 7, 1978, Peter Moreno, a taxicab driver, was murdered. On June 16, 1978, 

defendant pleaded guilty to the offense. At the hearing, the State provided the following factual 

basis. According to David Cichelli, on the morning of March 7, 1978, defendant visited him at 

the gas station where Cichelli worked and told him that he was going to rob and kill a cab driver. 

He showed Cichelli a loaded .22-caliber revolver. Shortly afterward, defendant left, walked two 

blocks, and called for a cab. Moreno arrived, picked up defendant, and drove to the area of York 

Commons. Defendant shot Moreno twice in the head with the revolver. Defendant then drove 

the cab, with Moreno’s body inside, a short distance and left it there. Defendant took some 

money from Moreno, returned to the gas station, and told Cichelli that he had killed Moreno 

because Moreno could identify him. Later that day, the police found the cab, with Moreno dead 

inside. 

¶ 3 The factual basis continued as follows. On March 8, 1978, defendant was arrested. At 

the police station, he admitted that he had called for the cab, that he was in the cab when he 

heard two shots fired, and that only he and Moreno had been in the cab then. Defendant said that 

the gun was in his home. The police searched the home and found the gun. When defendant 

shot Moreno, he was not under the influence of drugs or experiencing any mental incapacity that 

negated the intent required for murder. 

¶ 4 The trial court sentenced defendant to life imprisonment, based on a finding that the 

murder was accompanied by exceptionally brutal or heinous conduct indicative of wanton 

cruelty (see Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1)). Defendant moved to reconsider 

the sentence but not to withdraw the plea. The court denied the motion. On appeal, we held that 

the court’s finding of exceptionally brutal or heinous conduct had been erroneous, and we 

reduced his sentence to 60 years. People v. LaPointe, 85 Ill. App. 3d 215, 218-19, 224 (1980). 

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The supreme court reversed us and affirmed the trial court. People v. La Pointe, 88 Ill. 2d 482, 

493, 502 (1981). 

¶ 5 Of defendant’s numerous collateral actions, we recount those that are most pertinent here. 

In 2002, defendant petitioned for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 

5/122-1 et seq. (West 2002)), alleging that his trial counsel had been ineffective in numerous 

respects, including failing to investigate whether defendant had been under the influence of LSD 

on March 7, 1978, and failing to honor his request to move to withdraw his guilty plea. The trial 

court summarily dismissed the petition. We affirmed. People v. LaPointe, 341 Ill. App. 3d 1118 

(2003) (table) (unpublished order under Illinois Supreme Court Rule 23). 

¶ 6 In 2003, defendant filed a section 116-3 motion for fingerprint and DNA testing. At the 

time, section 116-3 provided, in part: 

“(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 fingerprint or forensic 

DNA testing 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 technology for the testing was not available at the time of trial. Reasonable notice of 

the motion shall be served upon the State. 

(b) The defendant must present a prima facie case that: 

(1) identity was the issue in the trial which resulted in his or her 

conviction[.]” 725 ILCS 5/116-3(a), (b)(1) (West 2002). 

¶ 7 The trial court denied the motion. This court affirmed, holding that section 116-3’s plain 

language limited it to convictions that resulted from trials, whereas defendant had pleaded guilty. 

People v. LaPointe, 355 Ill. App. 3d 1195 (2005) (table), slip order at 5 (unpublished order under 

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Illinois Supreme Court Rule 23). We added that, in any event, the motion was fatally defective 

insofar as (1) fingerprint testing was not unavailable when defendant pleaded guilty (id.) and 

(2) the motion’s reference to “ ‘hair samples’ ” was too vague for a court to decide whether 

testing this alleged evidence might produce “ ‘new, noncumulative evidence materially relevant 

to the defendant’s assertion of actual innocence’ ” (id. at 5-6 (quoting 725 ILCS 5/116-3(c)(1) 

(West 2002))). 

¶ 8 On January 28, 2004, defendant moved for leave to file a successive petition under the 

Act (see 725 ILCS 5/122-1(f) (West 2004)). He alleged in part that he had amnesia when he 

pleaded guilty but now knew that he was actually innocent and that trial counsel was ineffective 

for failing to introduce evidence proving his innocence. The allegedly exculpatory evidence 

included that the fingerprints and hair samples taken from the crime scene did not match 

defendant and that a ballistics report stated that the gun recovered from his home could not be 

conclusively identified as the murder weapon. On April 4, 2004, defendant again asked leave to 

file a successive petition under the Act. He alleged that he had been unfit to plead guilty and 

reiterated that the fingerprints and hair samples did not match him. The trial court denied both 

motions. In consolidated appeals, this court affirmed. People v. LaPointe, 366 Ill. App. 3d 1230 

(2006) (table) (unpublished order under Illinois Supreme Court Rule 23). 

¶ 9 In 2008, defendant moved again for leave to file a successive petition under the Act. The 

trial court denied the motion, and this court affirmed. People v. LaPointe, 403 Ill. App. 3d 1109 

(2010) (table) (unpublished order under Illinois Supreme Court Rule 23). However, per our 

supreme court’s supervisory order (People v. LaPointe, 239 Ill. 2d 571 (2011) (supervisory 

order)), we vacated our judgment and allowed defendant to file a petition essentially limited to 

defendant’s claim that trial counsel had been ineffective for failing to move to withdraw 

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defendant’s plea. After hearing evidence, the trial court denied the petition. This court affirmed. 

People v. La Pointe, 2015 IL App (2d) 130451. 

¶ 10 On January 24, 2014, defendant again moved for leave to file a successive petition under 

the Act, setting out numerous claims. Pertinent here are that his trial counsel was ineffective for 

failing to examine all of the forensic evidence before recommending that he plead guilty, that the 

State violated discovery rules by incorrectly stating that Cichelli had no criminal record, and that 

defendant was actually innocent. The trial court denied the motion. 

¶ 11 In a summary order issued September 29, 2015, this court affirmed. People v. LaPointe, 

No. 2-14-0217 (2015) (unpublished summary order under Illinois Supreme Court Rule 23(c)). 

Discussing the aforementioned claims, we noted as follows. Defendant contended that the State 

had disclosed before trial that no hair samples or fingerprints belonging to him were recovered 

from the crime scene. However, in affirming the denial of relief in the first section 116-3 action, 

we had noted that, by pleading guilty, defendant “made it impossible for a court to determine the 

relevance or probative value of any newly discovered evidence”; thus, res judicata barred 

relitigating claims based on counsel’s failure to use favorable forensic evidence. Id. ¶ 14. 

Defendant also contended that he was actually innocent, asserting that some forensic evidence 

disclosed in discovery was inconsistent with his guilt. We concluded, however, that “any 

infirmities in the forensic evidence did not reach the actual-innocence threshold, i.e., new, 

noncumulative, material evidence that is so conclusive that it would probably change the result 

on retrial.” Id. ¶ 27; see People v. Coleman, 2013 IL 113307, ¶ 96 

¶ 12 On February 23, 2016, defendant filed the section 116-3 motion at issue here. We set out 

the pertinent portion of section 116-3, with the new language emphasized: 

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“(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 fingerprint, Integrated 

Ballistic Identification System, or forensic DNA testing *** on evidence that was secured 

in relation to the trial or guilty plea which resulted in his or her conviction, and: 

(1) was not subject to the testing which is now requested at the time of 

trial; or 

(2) although previously subjected to testing, can be subjected to additional 

testing utilizing a method that was not scientifically available at the time of trial 

that provides a reasonable likelihood of more probative results. Reasonable 

notice of the motion shall be served upon the State. 

(b) The defendant must present a prima facie case that: 

(1) identity was the issue in the trial or guilty plea 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, tampered with, replaced, or 

altered in any material aspect. 

(c) The trial court shall allow the testing under reasonable conditions designed to 

protect the State’s interests in the integrity of the evidence and the testing process upon a 

determination that: 

(1) the result of the testing has the scientific potential to produce new, 

noncumulative evidence (i) materially relevant to the defendant’s assertion of 

actual innocence when the defendant’s conviction was the result of a trial, even 

though the results may not completely exonerate the defendant, or (ii) that would 

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raise a reasonable probability that the defendant would have been acquitted if the 

results of the evidence to be tested had been available prior to the defendant’s 

guilty plea and the petitioner had proceeded to trial instead of pleading guilty, 

even though the results may not completely exonerate the defendant; and 

(2) the testing requested employs a scientific method generally accepted 

within the relevant scientific community.” (Emphases added.) 725 ILCS 5/116­

3(a)-(c) (West 2016). 

¶ 13 Defendant’s motion alleged as follows. Unlike in 2003, the statute now applied to 

convictions based on guilty pleas. Identity had been at issue in defendant’s guilty plea: the 

State’s factual basis rested almost entirely on Cichelli’s statements, which provided all the 

evidence that defendant had been Moreno’s murderer (the fact of the murder not being in doubt). 

According to Cichelli, defendant first visited him at about 9 a.m., left about half an hour later, 

and returned to the station at “[a]bout maybe 10:30 or 11:00—towards the later part of the 

morning” and said that he had shot someone. Cichelli called the police at about 9:45 a.m. 

(according to a statement by the police dispatcher) and a cab was called to the vicinity of a 

nearby McDonald’s between 11:15 and 11:30 a.m. (according to a statement of the cab-company 

dispatcher). Roger Berkshire, a municipal worker, told the police that, at about 9:30 a.m., when 

he was at the McDonald’s, a young man with black hair asked a McDonald’s employee whether 

he could use the phone; the employee replied that there was a pay phone nearby, and the young 

man walked out. Defendant had brown hair, but Cichelli had black hair. Defendant’s friend 

Lawrence Matera told the police that, on March 7, 1978, as he, Mel Weyna, and John DuWaldt 

were driving on Spring Road between 10 a.m. and noon—probably close to 11 a.m.—they 

picked up defendant as he was walking and drove him to school. Dwayne Ronczkowski told the 

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police that he saw defendant in school between 11 a.m. and noon and saw him again at York 

Road and Grand Avenue sometime between 1:30 and 2 p.m. 

¶ 14 Defendant’s motion requested testing of the following items of evidence: (1) latent 

fingerprints taken from the cab, which had been checked against defendant but not against 

Cichelli, even though Cichelli’s prints would have been on file in 1978 because he was still on 

probation; (2) hair samples taken from the back of the cab, none of which had matched 

defendant’s hair and none of which had been tested against Cichelli’s hair; (3) a package of 

Marlboro cigarettes, with a “roach-like cigarette,” found in the vicinity of the crime scene 

(according to defendant, he did not smoke cigarettes, although he did smoke marijuana, and it 

was well known in 1978 that Cichelli smoked Marlboros and marijuana); (4) the gun seized from 

defendant’s home, which had shown “ ‘negative results’ ” for fingerprints but had not been tested 

for Cichelli’s prints. Defendant contended that the requested testing had the scientific potential 

to produce new, noncumulative evidence that would be materially relevant to his claim of actual 

innocence. See 725 ILCS 5/116-3(c)(1)(i) (West 2016).1 He alleged that the evidence had been 

in the State’s custody throughout. 

¶ 15 Defendant also contended that the motion was not barred by res judicata or collateral 

estoppel, as the basis for the denial of his first section 116-3 motion—that the statute did not 

apply to guilty pleas—no longer existed. 

¶ 16 The State did not respond to defendant’s motion. On April 27, 2016, the trial court 

denied it. The court’s written order stated that the motion was barred by res judicata. This was 

1 Because defendant pleaded guilty, however, the applicable standard was the one under 

section 116-3(c)(1)(ii) (725 ILCS 5/116-3(c)(1)(ii) (West 2016)). 

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not because of the earlier section 116-3 decision. Rather, the court stated, this court’s order of 

September 29, 2015 (quoted in part earlier here), had concluded that “the expected result of the 

Defendant’s requested testing [did] NOT have the scientific potential to produce new, 

noncumulative evidence.” Further, we had concluded that the requested testing did not raise a 

reasonable probability of an acquittal if the results had been available before his plea and he had 

gone to trial instead. The trial court did not discuss the merits of the motion in any other respect. 

After the court denied his motion to reconsider, defendant timely appealed. 

¶ 17 On appeal, defendant contends first that the trial court erred in holding that his 2016 

section 116-3 motion was barred by res judicata. He reasons that the facts alleged in his motion 

differ from those alleged in the 2003 motion. He also notes that, in the prior proceeding, section 

116-3 did not apply to convictions based on guilty pleas, as it now does. Defendant contends 

second that he met all the prerequisites for relief under section 116-3. He notes that, in a guiltyplea case, the results of the requested testing must have the scientific potential not to exonerate 

him completely, but only to raise a reasonable probability of an acquittal. See id. § 116­

3(c)(1)(ii). He contends that, given the State’s heavy reliance on Cichelli’s statements, which 

were seriously undermined by evidence from a variety of sources, the requested testing could 

produce results casting important new light on the soundness of defendant’s conviction. 

¶ 18 The State responds that the trial court did not base its res judicata finding on the 

judgment in the prior section 116-3 case (which the State concedes would have been erroneous) 

but instead correctly relied on our 2015 judgment affirming the denial of leave to file a 

successive petition under the Act. The State argues further that defendant’s 2016 motion merely 

speculated that Cichelli might have committed the murder and notes that, because a taxicab is 

typically occupied by numerous people on a given day, the presence of physical evidence that 

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did not match defendant would prove essentially nothing. The State notes also that Cichelli was 

not the only person who linked the murder to defendant: defendant himself did so in statements 

to the police, a psychiatrist who examined him, and fellow inmates in jail. The State concludes 

that, regardless of res judicata, defendant did not satisfy the materiality test of section 116-3. 

¶ 19 In reply, defendant contends that res judicata does not apply. He reasons that, in a 

proceeding under the Act, he would need to allege and prove substantive claims, such as actual 

innocence; but in a motion under section 116-3, he seeks only to obtain evidence to support a 

future claim of actual innocence. Moreover, he urges, the standards of proof differ: under the 

Act, he would need to show that newly discovered evidence is so conclusive that it would 

probably lead to a different result on retrial (Coleman, 2013 IL 113307, ¶ 96); in a section 116-3 

action, he must show only that the evidence has the scientific potential to raise a reasonable 

probability that he would have been acquitted had he proceeded to trial (725 ILCS 5/116­

3(c)(1)(ii) (West 2016)). 

¶ 20 We review de novo the denial of a section 116-3 motion. People v. Shum, 207 Ill. 2d 47, 

65 (2003). We are not limited to considering the grounds on which the trial court ruled; we may 

affirm the court’s judgment on any basis called for by the record. See People v. Olsson, 2015 IL 

App (2d) 140955, ¶ 17. However, because a section 116-3 motion is essentially a pleading in the 

nature of a civil complaint or a petition for relief under the Act, on our de novo review we must 

accept as true and construe liberally the well-pleaded facts in the motion unless they are 

contradicted by the trial court record. See People v. Sanders, 2016 IL 118123, ¶ 48. 

¶ 21 We agree with defendant that the trial court’s judgment cannot be affirmed on the basis 

on which it relied. The court erred in holding that our 2015 judgment denying defendant leave to 

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file a successive petition under the Act had res judicata effect on his 2016 motion under section 

116-3.2 

2 Defendant argues primarily that the judgment denying his prior section 116-3 motion 

did not have res judicata effect on the present motion, which was filed under the revised version 

of section 116-3. Defendant’s argument is misplaced: the trial court did not rely on the prior 

section 116-3 judgment. The State concedes that the court could not properly have done so, 

because the prior judgment was based on section 116-3’s inapplicability to convictions based on 

guilty pleas, a bar that no longer exists. See People v. Kines, 2015 IL App (2d) 140518, ¶ 22 

(res judicata does not apply when the judgment in the first action was plainly inconsistent with 

the equitable implementation of a statutory scheme, such as an intervening change in the statute). 

The State also notes that defendant thus does not specifically address the trial court’s 

actual reason for relying entirely on res judicata to deny defendant relief. Technically, this court 

could affirm the judgment on the narrow ground of forfeiture (see Ill. S. Ct. R. 341(h)(7) (eff. 

Jan. 1, 2016)). However, in the interests of justice and a sound body of law, we elect to overlook 

any forfeiture. See Halpin v. Schultz, 234 Ill. 2d 381, 390 (2009). 

Finally, we note that, in general, res judicata is an affirmative defense that may be 

waived or forfeited. Schloss v. Jumper, 2014 IL App (4th) 121086, ¶ 18. Thus, it is arguable 

that the trial court erred in raising it sua sponte after the State declined to answer defendant’s 

motion. However, defendant does not so contend, and we shall not risk overstepping our own 

bounds by raising the issue sua sponte. Although the Act allows summary dismissals based on 

res judicata (People v. Blair, 215 Ill. 2d 427, 445 (2005)), that allowance appears to be 

predicated on the specific features of the Act’s “unique” summary-dismissal procedure (People 

v. O’Connell, 227 Ill. 2d 31, 38 (2007)) and thus is not dispositive of the interesting hypothetical 

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¶ 22 Under res judicata, a final judgment on the merits bars a similar suit involving the same 

parties and the same cause of action. Kines, 2015 IL App (2d) 140518, ¶ 21. Res judicata is an 

equitable doctrine and may be relaxed when justice requires. Id. Whether res judicata applies is 

a question of law, which we review de novo. Id. ¶ 20. 

¶ 23 We decline to apply res judicata here. Although our judgment affirming the denial of 

defendant’s motion to file a successive petition under the Act was final on the merits and 

involved the same parties as this proceeding, it did not involve the same cause of action. The 

difference is not the merely formal one in the statutory bases for the actions. See People v. 

White, 198 Ill. App. 3d 781, 784 (1989) (defendant could not use petition under Act to raise 

claims essentially identical to those raised in prior habeas corpus petition). The differences in 

the two proceedings go beyond mere statutory forms. 

¶ 24 The trial court relied on that part of our order holding that the forensic evidence disclosed 

in discovery “did not reach the actual-innocence threshold, i.e., new, noncumulative, material 

evidence that is so conclusive that it would probably change the result on retrial. See People v. 

Coleman, 2013 IL 113307, ¶ 96.” LaPointe, No. 2-14-0217, ¶ 27. Although the court assumed 

otherwise, the actual-innocence threshold does not apply to the present proceeding. There are 

two serious differences. First, in an actual-innocence challenge, the defendant must allege and 

prove that known evidence that has been lately discovered is conclusive. But as defendant points 

out, in this proceeding, under section 116-3, he is seeking to obtain evidence—test data—that 

does not yet exist, and he need show only that the testing that will produce this evidence has the 

potential to reach the threshold of subsection (c)(1)(ii). Thus, proceedings under the Act and 

those under section 116-3 raise different issues. 

issue that the court’s action here raises. 

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¶ 25 Second, even aside from the difference between the actual effect of current and known 

evidence and the potential effect of evidence yet to be obtained, the thresholds in the two 

proceedings are not interchangeable. Evidence “so conclusive it would probably change the 

result on retrial” (emphasis added) (Coleman, 2013 IL 113307, ¶ 96) would appear to have to be 

stronger than evidence “that would raise a reasonable probability that the defendant would have 

been acquitted” (725 ILCS 5/116-3(c)(1)(ii) (West 2016)) had it been used at trial. The strong 

term “conclusive” is present in the former test but not in the latter, and “probably changing the 

result” is arguably a higher standard than merely raising a reasonable probability of changing the 

result.3 

¶ 26 As we cannot affirm the trial court’s judgment on the basis of res judicata, we must 

decide whether the judgment was correct on the merits. The State argues primarily that 

defendant’s motion failed to satisfy subsection (c)(1)(ii), because it did not establish that “the 

result of the testing has the scientific potential to produce new, noncumulative evidence *** that 

would raise a reasonable probability that [defendant] would have been acquitted” had the test 

results been available prior to his guilty plea and had he proceeded to trial instead of pleading 

3 There is, of course, a syntactic inconsistency in the former test. One dictionary defines 

“conclusive” as “putting an end to debate or question esp. by reason of irrefutability”; lists as 

synonyms “decisive,” “determinative,” and “definitive”; and gives as an example “conclusive 

evidence” (emphasis omitted). Merriam-Webster’s Collegiate Dictionary 239 (10th ed. 2001). 

By this definition, to speak of evidence that is so conclusive that it would probably change the 

result is nonsensical, stating that a certainty must exist to a degree sufficient to make it probable. 

Fortunately, this oddity can be ignored and the test understood by reference to what follows 

“conclusive.” 

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guilty, even though the results might not have “completely exonerate[d]” him. Id. The State 

also argues that, even if we decide that defendant’s motion satisfied the foregoing requirement, a 

remand is still necessary so that the trial court can determine whether the evidence to be tested 

has been subject to a sufficient chain of custody (see id. § 116-3(b)(2)). 

¶ 27 To decide whether the judgment can be affirmed on the grounds urged by the State—or 

on any other grounds called for by the record—we must first address the meaning of section 116­

3 as it applies in this case. This requires employing the standard rules of statutory construction, 

the fundamental one being to ascertain and effectuate the intent of the legislature. People v. 

Bailey, 386 Ill. App. 3d 68, 71 (2008). To do so, we look first to the language that the legislature 

used; if it is unambiguous, we must apply it straightforwardly. Id. at 72. We examine in turn 

each of section 116-3’s requirements that apply in this case. 

¶ 28 Subsection (a) enables a defendant to obtain testing on “evidence that was secured in 

relation to the *** guilty plea which resulted in his or her conviction.” (Emphasis added.) 725 

ILCS 5/116-3(a) (West 2016). The defendant can request one or more of the following types of 

testing: fingerprint testing, Integrated Ballistic Identification System (IBIS) testing, or forensic 

DNA testing. Id. Finally under subsection (a), the defendant must establish that the evidence to 

be tested either (1) “was not subject to the testing which is now requested at the time of trial” or 

(2) “although previously subjected to testing, can be subjected to additional testing utilizing a 

method that was not scientifically available at the time of trial.” (Emphases added.) Id. § 116­

3(a)(1), (a)(2). 

¶ 29 The foregoing language poses some difficulties, but none appears serious in the context 

of this appeal. First, it will not always be obvious what evidence has been secured “in relation 

to” a guilty plea. The police and the prosecution ordinarily secure most of the incriminating 

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evidence, but the defendant is the one who pleads guilty. However, the State does not here 

contest that defendant satisfied this element, and it is reasonable to say that the four named items 

that he wants tested—the fingerprints, hair samples, cigarette package, and gun—did have a 

relationship to his guilty plea. The fingerprints and hair samples were recovered from the 

taxicab, where Moreno was killed. The cigarette package was recovered nearby.

4

 The gun, of 

course, was mentioned in the factual basis for the plea, as defendant told the police that he had 

used it to kill Moreno, and he let them take it from his home and place it into evidence. 

¶ 30 Theoretically, because the first three items did not actually implicate defendant, it could 

be argued that they were not secured “in relation to” his guilty plea. But defendant’s motion 

asserted that these items might provide evidence that someone else was the murderer. Thus, in a 

sense, they were obtained in relation to the plea: defendant’s theory implies that the failure to test 

the items might have denied him exculpatory evidence, which could have changed his decision 

to plead guilty. More generally, obtaining evidence that someone else committed the crime is 

the entire focus of section 116-3, whether as applied to convictions based on trial evidence or 

those based on guilty pleas. It is consistent with the intent of the statute to hold that even 

evidence that did not inculpate defendant can be within subsection (a). And, again, the State 

4 Exactly how near is not clear from the record. The March 8, 1978, supplementary 

report by the investigating officer stated that, at some time shortly after 7:20 a.m. that day, the 

package was found approximately two feet north of “an access drive to the Butterfield Towers 

apartment building, at approximately 10 ft. west of Chatham.” At the preliminary hearing, the 

officer testified that the general area was the corner of Chatham Avenue and Harrison Street, on 

the south side of Elmhurst, and that the cab was parked in a “makeshift-type exit” from the 

apartment building. 

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does not contest this element, and the trial court did not consider it. Therefore, we shall not
 

consider it further.
 

¶ 31 The types of testing are limited to fingerprint, IBIS, and DNA testing. Defendant’s
 

motion requested the following: (1) fingerprint testing of the latent prints lifted from the cab,
 

(2) DNA testing of the hairs recovered from the cab, (3) DNA testing of the cigarette package,

5 

and (4) fingerprint testing of the gun. Both fingerprint and DNA testing are within subsection 

(a). The motion requested no other type of testing.6 

5 The trial court’s order stated that the motion had requested “[g]eneral testing” of the 

cigarette package. The motion mentioned the cigarette package in two respects pertinent here. 

First, it stated that the package contained “Marlboro cigarettes with a roach-like cigarette” and 

that, although it was common knowledge in 1978 that defendant did not smoke cigarettes and 

that Cichelli did smoke both Marlboros and marijuana, “nothing was tested against [Cichelli].” 

Second, in the summary of the evidence that defendant wanted tested, the motion requested that 

“the evidence collected from the crime scene *** should be DNA tested” to exclude defendant 

and determine whether it matches any person in the “DNA database.” Thus, the motion did not 

clearly request any testing of the cigarette package other than DNA testing. 

6 The motion did make a passing reference to “ballistic testing available now” but did not 

elaborate or include this type of testing among those requested. Also, the motion asked that the 

case be “reopened” to ensure that the tape-recorded call to the police department was made by 

Cichelli, and it noted that the telephone records from the gas station were never obtained to show 

exactly when the call was made. Insofar as the motion raised ballistic testing, tape recordings, or 

telephone records, it lacked merit, because these matters are plainly outside the purview of 

section 116-3, at least as far as they relate to this case. 

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¶ 32 Finally in examining subsection (a) in relation to this case, we turn to the alternative 

prerequisites of subsections (a)(1) and (a)(2). The evidence must either (1) not have been 

“subject to the testing which is now requested at the time of trial” (emphasis added) (id. § 116­

3(a)(1)) or (2) have been “subjected to testing previously” but be capable of being subjected to 

additional testing using a method that was “not scientifically available at the time of trial” and 

that provides a reasonable probability of producing more probative results (emphasis added) (id. 

§ 116-3(a)(2)). 

¶ 33 We note first a small oversight in the 2014 amendments to section 116-3. After “at the 

time of trial” in each subsection, there should follow “or the guilty plea.” To avoid absurdity, we 

construe each subsection to include the missing phraseology, so as to fit the guilty-plea context. 

See In re M.T., 221 Ill. 2d 517, 524 (2006) (court may depart from literal language of statute 

when needed to avoid defeating obvious intent of the legislature). The issue is therefore whether 

the motion’s requests satisfy either prerequisite. 

¶ 34 On this score, we note that subsection (a)(1) uses “subject” but subsection (a)(2) uses 

“subjected.” “Subject” denotes what testing could have been performed; “subjected” denotes 

what testing actually was performed. See Webster’s Third New International Dictionary 2275 

(1993) (definitions of “subject” and “subjected” as adjectives); Black’s Law Dictionary 1651-52 

(10th ed. 2014) (definitions of “subject” as adjective and as verb). 

¶ 35 As applied here, therefore, the DNA testing that the motion requested clearly satisfied 

subsection (a)(1), because all agree that DNA testing not only was not performed in 1978 but 

could not have been performed. The fingerprint testing that the motion requested requires more 

discussion. The fingerprints in the cab and on the gun were “subject” to testing in 1978 and, 

indeed, were actually “subjected” to testing. The motion contended, however, that the testing 

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was limited to comparing the prints with defendant’s standard and not with anyone else’s, most 

pertinently Cichelli’s. The motion alleged that, although Cichelli was on probation at the time, 

and thus his fingerprints were available, the State did not inform defendant of this fact and thus 

prevented any comparison of the fingerprints with Cichelli’s standard. 

¶ 36 It must be noted, however, that defendant’s motion had to allege facts to show that the 

requested testing would use “a method that was not scientifically available” at the time of the 

plea. (Emphasis added.) 725 ILCS 5/116-3(a)(2) (West 2016). Thus, the motion could not rely 

on the mere allegation that certain fingerprints had not been tested against Cichelli’s standard in 

1978. Rather, it had to allege that a new scientific methodology for testing the prints had been 

made available since 1978. The motion did so, although cursorily. 

¶ 37 The motion alleged that “[t]he DNA, fingerprint (AIFIS [sic]), and ballistic testing 

available now will provide a reasonable likelihood of more probative results.” “AIFIS [sic]” is 

intelligible as the Automated Fingerprint Identification System (AFIS), which uses various 

algorithms to search a database. See People v. Slover, 2011 IL App (4th) 100276, ¶ 6; People v. 

Manley, 222 Ill. App. 3d 896, 901 (1991). We accept defendant’s contention that the 

sophisticated digital database and algorithms of AFIS were unavailable to him in 1978. See, e.g., 

Monzo v. Edwards, 281 F.3d 568, 573 (6th Cir. 2002) (fingerprints were taken from crime scene 

in 1987 but defendant was identified from them only in 1993, after AFIS had become available 

in that case). As defendant notes, Manley is the first Illinois opinion to note the use of AFIS 

testing, which in that case took place in 1987. See Manley, 222 Ill. App. 3d at 901. 

¶ 38 We turn to subsection (b) of section 116-3. Subsection (b)(1) requires a defendant to 

present a prima facie case that “identity was the issue in the *** guilty plea which resulted in his 

or her conviction.” 725 ILCS 5/116(b)(1) (West 2016). Again, it is necessary to eschew a literal 

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construction of the statute, so as to avoid absurdity. Speaking of what was “the issue” at a trial 

makes perfect sense; but speaking of “the issue” in a guilty plea is a contradiction in terms. A 

guilty plea concedes all of the issues that might have been raised at a trial. In a guilty plea, 

nothing is the “issue.” Thus, we cannot rely on the literal language of subsection (b)(1). 

¶ 39 Fortunately, we need not resolve this conundrum here. The trial court did not address 

subsection (b)(1) and the State does not do so now. Whatever subsection (b)(1) does, could, or 

ought to mean in the context of guilty plea is best left to another case—or better yet to the 

legislature, which we invite to reconsider its choice of phraseology. 

¶ 40 We turn to the next inquiry: whether defendant’s motion satisfied subsection (b)(2), 

which requires that the evidence was subject to a chain of custody sufficient to establish that it 

has not been substituted, tampered with, replaced, or altered in any material aspect. Id. § 116­

3(b)(2). Defendant’s motion alleged that the trial court ordered the evidence in the case 

preserved and that presumably this was done. We agree with him that this allegation, although 

conclusional, was sufficient. As Bailey notes, a defendant must ordinarily rely on conclusions 

and presumptions to satisfy subsection (b)(2), because “ ‘the evidence at issue will undoubtedly 

have been within the safekeeping of the State, not the defendant.’ ” Bailey, 386 Ill. App. 3d at 75 

(quoting People v. Travis, 329 Ill. App. 3d 280, 285 (2002)); see generally People v. Johnson, 

205 Ill. 2d 381, 394 (2002). 

¶ 41 The State contends that a remand would be needed to establish that there was a proper 

chain of custody, because, owing to its age, the evidence might be “in a condition that does not 

permit meaningful testing or viable results.” However, this possibility does not affect whether, 

under the applicable case law, defendant’s motion made a prima facie case that the evidence was 

subject to a proper chain of custody. Also, the State failed to contest this issue in the trial court 

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by responding to defendant’s motion, and the court never ruled on the issue either. Subsection 

(b)(2) provides no basis on which to affirm the judgment. 

¶ 42 We turn next to the remaining contested issue in this appeal: whether defendant showed 

that the results of the requested fingerprint and DNA testing have “the scientific potential to 

produce new, noncumulative evidence *** that would raise a reasonable probability” that he 

would have been acquitted had the test results been available before he pleaded guilty and had he 

proceeded to trial. 725 ILCS 5/116-3(c)(1)(ii) (West 2016). As the parties do, we shall call this 

the “materiality” requirement. 

¶ 43 Defendant notes that he did not need to demonstrate that the test results would 

“completely exonerate” him. Id. The problem, of course, is what defendant did have to show 

and whether he did so. 

¶ 44 First, we agree with defendant that, because no AFIS or DNA testing was either available 

or performed in 1978, his motion sufficiently alleged that the requested testing has the scientific 

potential to produce “new, noncumulative evidence.” Id. § 116-3(c)(1). We must therefore 

decide whether the motion sufficiently alleged that this evidence—the results of the fingerprint 

testing of the cab and the gun and the DNA testing of the hairs and the cigarette package—would 

raise a reasonable probability that defendant would have been acquitted had he gone to trial. 

¶ 45 To do so, however, we must also consider the strength of the evidence that the State 

could have introduced at a trial. See People v. Grant, 2016 IL App (3d) 140211, ¶¶ 21-25 (on 

motion under section 116-3, by defendant who was convicted after trial, strength of State’s 

evidence was not pertinent to whether identity was at issue but was pertinent to potential of 

testing to produce materially relevant results); People v. Navarro, 2015 IL App (1st) 131550, 

¶¶ 16-18 (motion did not satisfy materiality requirement for requested ballistic tests, as 

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eyewitness testimony provided overwhelming evidence of guilt and ballistic evidence played 

small role). We recognize that these opinions provide limited guidance, as there the evidence of 

identity was introduced at trial and not merely on the factual basis for a guilty plea. Nonetheless, 

although we cannot know precisely what evidence would have been introduced and admitted had 

defendant elected to go to trial, the record does show the following. 

¶ 46 Defendant confessed to the police that he murdered Moreno, and he led them to the gun 

that he said he had used. Defendant told Timothy Timus (whoever he was) that he had 

committed the crime. He also told jail inmates (perhaps including Timus) the same thing. And 

he told the same thing to the psychiatrist who examined him before he pleaded guilty. 

¶ 47 The record contains specifics relating to defendant’s admissions. At the preliminary 

hearing, Elmhurst police officer Robert Jones testified as follows. At 12:45 p.m. on March 8, 

1978, he arrested defendant. At the police station, Jones and James O’Brien, a fellow officer, 

questioned him. Jones asked defendant what he had done the previous morning. Defendant 

responded that he had looked for work at two locations in the industrial park in Elmhurst; he was 

vague on the names of the employers. He said that he had been at the gas station that morning; 

asked whether he had used the phone there, he responded, “ ‘I think so.’ ” Asked whether he had 

called for a cab, defendant said no. He admitted that, at the gas station, he conversed with 

Cichelli and pointed to a spot on a map. Asked again whether he had called for a cab, defendant 

said that he remembered leaving the gas station, seeing a cab at the McDonald’s about a block 

away, and starting to run. 

¶ 48 Jones testified further as follows. Defendant said that, on the morning of March 7, 1978, 

when he left his home, he was carrying a gun. He described it as black with a long barrel. At the 

gas station, in the washroom, he showed Cichelli the gun and told him that he was going to rob 

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and kill a cab driver. He remembered having called for the cab and explained to the officers that 

he did so to go from the McDonald’s to York Commons. After he left the gas station, saw the 

cab, and entered it, he went south on York Road. The next thing that he remembered was being 

at York Commons and walking away from the cab. He saw a police car with its overhead lights 

on go by on York Road, so he reentered the cab, pushed the driver down onto the floor, and 

started driving south. He and the driver had been the only people in the cab at York Commons. 

Asked by Jones whether he remembered killing the driver, defendant said no. O’Brien then 

asked defendant to clarify whether, when he reentered the cab and pushed down the driver, “this 

was after he had killed him.” Defendant nodded his head. Jones asked defendant how many 

gunshots he had heard from inside the cab. Defendant said two. 

¶ 49 Jones testified that defendant said that he took the gun home and placed it into a closet in 

a spare bedroom. That evening, officers executed a search warrant. Inside the closet, they found 

a long black Sturm Ruger .22-caliber revolver and four boxes of .22-caliber ammunition. There 

was another gun, similar to the first, in the closet. The police did not ascertain whether the first 

gun had been used recently. 

¶ 50 We note also that defendant persisted in stating or implying that he killed Moreno. In a 

report attached to the 2002 postconviction petition, Lyle Rossiter, a psychiatrist who examined 

defendant on April 13, 1978, recounted that defendant admitted to taking a gun from his father’s 

home; showing the gun to his friend at the gas station; calling for a cab and walking to a nearby 

McDonald’s, where he entered the cab; riding in the cab but blacking out as a result of having 

ingested LSD earlier that day; recovering consciousness; seeing a police car nearby; exiting and 

reentering the cab and driving it away; and then exiting the cab, walking, and being picked up by 

friends who drove him to school. 

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¶ 51 In February 1997, Rossiter again examined defendant. In his report, Rossiter noted that 

defendant told him the following. Defendant robbed Moreno because he needed money for his 

drug habit. He did not want to kill Moreno but, having taken LSD that morning, he “lost control, 

got scared, [and] shot the cab driver.” After that, he jumped into the front seat and stopped the 

cab. He got out, saw a police car go by, and drove the cab to a secluded area, where he went 

through Moreno’s pockets. Rossiter asked defendant how he felt about killing Moreno. 

Defendant responded, “ ‘I wish I could take it back, bring him back, I feel so bad about it, I feel 

so bad that I took another man’s life.’ ” 

¶ 52 Obviously, the 1997 report would not have been available for a trial held in 1978 or 

shortly thereafter. But we can presume that the court would have admitted defendant’s 

statements to the police. (Although defendant did file a motion to suppress his statements, he did 

not pursue it but instead pleaded guilty shortly thereafter.) There being no doubt as to the 

corpus delicti of the murder, it appears that the State would have had a strong case at a trial. Not 

only could it have introduced defendant’s detailed confession to the police, it could have 

identified the weapon and linked it to him. And, of course, it could have introduced Cichelli’s 

testimony. 

¶ 53 On the other hand, pending the results of the requested testing, defendant could plausibly 

have contested that case. There were no independent eyewitnesses to the murder. The 

fingerprint evidence and the hair samples did not implicate defendant. And, based on the 

evidence attached to his motion, there might have been conflicting or confusing evidence on 

when the cab was called, from where, and, thus, by whom. Defendant correctly noted that 

Cichelli knew a great deal about the circumstances of the murder, was in the area at the time, and 

called the police shortly before it took place. Defendant did not merely assert that he did not 

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murder Moreno. He posited an identified person as the actual murderer and relied on evidence 

of record to support that position. Certainly, if the requested testing connects the evidence to 

some unknown third person, it would not raise a reasonable probability that defendant would 

have been acquitted at trial. But if it connects the evidence to Cichelli, a different conclusion 

might well be warranted. 

¶ 54 As can be seen, ascertaining the effect of test results that are unknown on a trial that was 

never held will not always be easy. However, defendant’s motion need prove not certainties but 

only reasonable probabilities. Under the unique and difficult circumstances of this case, we 

conclude that defendant’s motion made a sufficient case for the testing that he requested. 

¶ 55 We are aware that defendant’s theory of the case appears to be both novel and 

inconsistent with the theories of one or more of the postconviction actions that he filed.7 We are 

also aware that the tests that defendant seeks have the scientific potential to have made an 

acquittal a reasonable probability only if they produce the specific results for which he hopes. 

¶ 56 Nonetheless, we construe section 116-3 liberally to favor its purpose of making the 

criminal justice process more reliable by allowing, where there is a reasonable basis, the 

acquisition of sound scientific evidence that is probative on the issue of identity. Whether the 

evidence eventually favors the defendant or the State, its acquisition will contribute to the 

reliability of the criminal process and confidence in the ultimate result. Of course, each 

defendant pursuing relief under section 116-3 will still have the burden of overcoming several 

7 It is perhaps tempting to conclude that, in those prior actions, defendant judicially 

admitted his guilt such that his present claim is foreclosed. However, a guilty plea is also a 

judicial admission. Spircoff v. Stranski, 301 Ill. App. 3d 10, 15 (1998). If defendant’s guilty 

plea did not foreclose his present claim, we see no way that his subsequent admissions did either. 

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substantial hurdles. However, these hurdles should not be set so high as to endanger the 

important purposes of the law. Here, it is far from inconceivable that one or more of the tests 

could produce material results. We resolve any lingering doubts about the scope of section 116­

3 on the side of more probative evidence. 

¶ 57 For the foregoing reasons, we reverse the judgment of the circuit court of Du Page 

County, and we remand the cause for proceedings consistent with this opinion. 

¶ 58 Reversed and remanded. 

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