NO. 5-03-0754

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellee,				)  Madison County.

							)

v.							)  Nos. 88-CF-337 & 88-CF-715

							)

JACK LAMMING,					)  Honorable

							)  Ann Callis,

     Defendant-Appellant.				)  Judge, presiding.

___________________________________________________________________________

	PRESIDING JUSTICE DONOVAN delivered the opinion of the court:

	Defendant, Jack Lamming, appeals from the judgment of the circuit court of Madison

County denying his motion for DNA testing pursuant to section 116-3 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2002)).

	On September 22, 1988, defendant pled guilty in No. 88-CF-337 to the offenses of

home invasion, aggravated criminal sexual assault of a 73-year-old woman, and residential

burglary.  He was sentenced to concurrent prison terms of 20 years for home invasion, 25

years for aggravated criminal sexual assault, and 15 years for residential burglary.  In No.

88-CF-715, defendant pled guilty to home invasion, two counts of aggravated criminal sexual

assault of a 48-year-old woman, and residential burglary.  He was sentenced to concurrent

prison terms of 20 years for home invasion, 20 years for each count of aggravated criminal

sexual assault, and 15 years for residential burglary.  His sentences in No. 88-CF-715 were

ordered to run consecutively to the sentences in No. 88-CF-337, for a total agreed-upon

sentence of 45 years' imprisonment.

	Over the years, defendant has filed several postconviction petitions.  This time we are faced with his revised motion for forensic DNA testing.  Defendant asserts in his motion that

he is entitled to testing of the seminal material recovered because the procedures used in

1988 by Lifecodes laboratory were flawed.  The circuit court, in denying defendant's motion,

ruled that defendant had admitted his guilt by entering pleas of guilty, the evidence at issue

had been subject to DNA testing prior to his guilty pleas, and defendant had received the

benefit of his plea bargain with the State.  Defendant argues on appeal that DNA testing has

the potential to produce new, noncumulative evidence materially relevant to his claim of

innocence, especially in light of the fact that Lifecodes had been found to have performed

unreliable testing in 1988.  Defendant argues that Lifecodes' unreliability at a time

contemporaneous with the testing performed on the evidence from his case is tantamount to

a failure to test at all.

	A trial court's ruling on a motion brought pursuant to section 116-3 is reviewed de novo.  People v. Hockenberry, 316 Ill. App. 3d 752, 755, 737 N.E.2d 1088, 1091 (2000).  And, in construing section 116-3, we are obliged to give the statutory language its plain and

ordinary meaning.  People v. Stevens, 315 Ill. App. 3d 781, 784, 733 N.E.2d 1283, 1286 (2000).

	To be entitled to DNA testing pursuant to section 116-3, a defendant must first present

a prima facie case that identity was at issue at his trial and that the evidence to be tested has been under a secure chain of custody.  725 ILCS 5/116-3(b) (West 2002).  The plain and

unambiguous language of the statute presupposes the existence of a trial and a conviction

resulting from that trial.  Without a trial, there is no way to satisfy the identity-at-issue

requirement.  Accordingly, defendant cannot meet the first prong of the test.  Defendant did

not proceed to trial but pled guilty.  Moreover, postconviction testing is predicated upon a

claim of actual innocence.  If a defendant does not deny committing the acts charged, there

would be no reason to test for new evidence potentially relevant to the question of innocence.  As recognized in People v. Urioste:

	"[O]ur legislature wanted postconviction forensic testing to occur only in those cases

where such testing could discover new evidence at sharp odds with a previously

rendered guilty verdict based upon criminal acts that the defendant denied having engaged in.  Our legislature did not want convicted defendants who admitted at their trial to the commission of the acts charged, and did not contest the question of who

committed those acts, to make a mockery of the criminal justice system and the

statute's grace."  (Emphasis in original.)  People v. Urioste, 316 Ill. App. 3d 307, 316, 736 N.E.2d 706, 714 (2000).

Because defendant pled guilty, he did not have a trial, he did not deny committing the acts

charged, and identity was not at issue.  The trial court, therefore, correctly denied defendant's

postconviction motion for DNA testing.

	We further note that DNA technology was available at the time when defendant pled

guilty and that the material collected was subjected to DNA testing.  To have granted

defendant's request for retesting would have been contrary to both the express language of

the statute and the intent of the legislature.  See People v. Shelton, 351 Ill. App. 3d 292, 294, 813 N.E.2d 755, 757 (2004).

		"The clear and unambiguous language of subsection (a) of section 116-3

requires that a defendant show that the evidence in question was not subject to the

requested testing at the time of the trial and that the reason it was not subjected to the

requested testing is that the technology for such testing was unavailable at the time

of the trial." People v. Franks, 323 Ill. App. 3d 660, 662, 752 N.E.2d 1274, 1276 (2001).

See also People v. Price, 345 Ill. App. 3d 129, 142, 801 N.E.2d 1187, 1199 (2003).  Again, we conclude that the trial court correctly denied defendant's motion.

	Defendant's reliance on People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989), and People v. Lipscomb, 215 Ill. App. 3d 413, 574 N.E.2d 1345 (1991), to declare that the DNA testing performed by Lifecodes was unreliable is misplaced.  In Castro, a New York trial court held that DNA evidence was inadmissible unless a heightened Frye standard of admissibility (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) was satisfied.  Castro's heightened Frye standard does not govern the admissibility of DNA evidence in Illinois.  See People v. Miller, 173 Ill. 2d 167, 670 N.E.2d 721 (1996).  And, with respect to Lipscomb, while the testifying expert had concerns over procedures used by Lifecodes in a particular case, he further opined that Lifecodes' reputation in the scientific community, in

general, was good.  Here defendant offers nothing more than speculation to support his claim

that the results of the DNA testing performed on the evidence in his case are unreliable. 

Additionally, by pleading guilty, defendant consciously chose not to challenge the State's

representation that the DNA testing performed by Lifecodes revealed a match between his

blood and the semen found at the crime scene, thereby ending the controversy.

	For the aforementioned reasons, we affirm the judgment of the circuit court of

Madison County.

	Affirmed.

	WELCH and HOPKINS, JJ., concur.

                                     	NO. 5-03-0754

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellee,				)  Madison County.

							)

v.							)  Nos. 88-CF-337 & 88-CF-715

							)

JACK LAMMING,					)  Honorable

							)  Ann Callis,

     Defendant-Appellant.				)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:	July 19, 2005		

___________________________________________________________________________________

Justices:	Honorable James K. Donovan, P.J.

	Honorable Thomas M. Welch, J., and

	Honorable Terrence J. Hopkins, J.,

	Concur

___________________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Elaine M. Belcher, Assistant Defender, Office

for	of the State Appellate Defender, Fifth Judicial District, 730 E. Illinois Highway 15, 

Appellant	Suite #1, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys	Hon. William A. Mudge, State's Attorney, Madison County Courthouse, 157 N. Main

for	Street, Edwardsville, IL 62025; Norbert J. Goetten, Director, Stephen E. Norris,

Appellee	Deputy Director, Trent M. Marshall, Staff Attorney, Office of the State's Attorneys

	Appellate Prosecutor, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. 

	Vernon, IL 62864

___________________________________________________________________________________