                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. English, 2013 IL App (4th) 120044




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARIO S. ENGLISH, JR., Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-12-0044


Filed                      April 17, 2013


Held                       The denial of defendant’s pro se motion seeking fingerprints or forensic
(Note: This syllabus       testing of a handgun allegedly used in an armed robbery was upheld,
constitutes no part of     since defendant’s claim of actual innocence would not be advanced by the
the opinion of the court   lack of his fingerprints on the weapon or the presence of another person’s
but has been prepared      fingerprints, especially when the weapon was recovered more than two
by the Reporter of         weeks after the robbery at issue and there was evidence the weapon had
Decisions for the          been used in other robberies involving other people during the same
convenience of the         period of time.
reader.)


Decision Under             Appeal from the Circuit Court of Adams County, No. 00-CF-55; the Hon.
Review                     William O. Mays, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Lawrence Bapst, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Jonathan H. Barnard, State’s Attorney, of Quincy (Patrick Delfino,
                           Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE TURNER delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Holder White concurred in the
                           judgment and opinion.




                                             OPINION

¶1           In October 2011, defendant, Mario S. English, Jr., filed a pro se motion for fingerprints
        or forensic testing on a handgun under section 116-3 of the Code of Criminal Procedure of
        1963 (Procedure Code) (725 ILCS 5/116-3 (West 2010)). In a December 2011 written order,
        the Adams County circuit court sua sponte denied defendant’s motion. Defendant appeals,
        asserting this court should remand the cause for a hearing on the motion’s merits because the
        trial court improperly treated the motion as a postconviction petition. We affirm.

¶2                                      I. BACKGROUND
¶3          Around 12:30 a.m. on November 14, 1999, two armed men entered Cassano’s restaurant
        in Quincy after the restaurant had closed and took money from the restaurant and the
        employees. In February 2000, the State charged defendant by information with the armed
        robbery (720 ILCS 5/18-2(a) (West 1998)) of Cassano’s. On a pretrial motion, the trial court
        allowed the State to use evidence of three of the armed robberies that closely matched the
        modus operandi of the Cassano’s robbery.
¶4          At defendant’s May 2002 trial, three employees of Cassano’s (James Schmalshof, Brian
        Postle, and Roger Hokamp) testified two men, one of whom was armed with a gun, entered
        the restaurant through the back door. According to the employees, the intruders’ faces were
        covered, and they were wearing gloves. The employees gave very similar descriptions of the
        intruders’ height and build.
¶5          The State also presented the testimony of defendant’s acquaintances, William Raine,
        Terry Legel, and Chad Dennison. Raine testified he, Legel, and defendant robbed Cassano’s.
        Raine went in the restaurant but could not remember for sure if defendant or Legel went in
        the restaurant with him. The third person stayed with the car. They used a .380 handgun.
        Raine also testified about three other robberies (Lone Star, Happy Joe’s, and Ganzo’s) he

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       committed that involved defendant and the same .380 handgun.
¶6         Legel, defendant’s cousin, testified he robbed Cassano’s with Raine and Fernando
       Duarte. According to Legel, he and Raine went into the restaurant while Duarte stayed with
       the car. However, Legel admitted that in December 1999, he told Detective Bill Thomas
       defendant participated in the robbery, not Duarte. Legel had explained to Detective Thomas
       that Raine and defendant went into Cassano’s while he remained in the car. Legel further
       testified he had the .380 Bersa handgun during the Cassano’s robbery, which belonged to
       him, Dennison, and defendant. Moreover, Legel stated he participated in (1) the Lone Star
       robbery with Jimmy Morgan, Raine, and defendant; (2) the Happy Joe’s robbery with Raine,
       Morgan, and Duarte; and (3) the Ganzo’s robbery with Raine, Dennison, and Duarte. All
       three robberies also involved the .380 Bersa handgun. Legel also admitted he told Detective
       Thomas that defendant, not Duarte, was involved in the Happy Joe’s and Ganzo’s robberies.
       Legel explained he gave Detective Thomas a false statement because Detective Thomas had
       grabbed him around the neck and slammed him into a corner before the statement. Further,
       Detective Thomas told Legel that, if he cooperated with Detective Thomas, things would be
       a lot easier on Legel.
¶7         Dennison testified he did not take part in the Cassano’s robbery but did take part in the
       Ganzo’s robbery with Raine, Legel, and defendant. A .380 Bersa handgun was used in the
       Ganzo’s robbery. Dennison further testified he was present when defendant purchased the
       .380 Bersa handgun in late September or early October 1999. According to Dennison,
       defendant purchased the gun for approximately $120 at an individual’s house in Rock Island.
       Additionally, Dennison stated that, in late November 1999, the police stopped defendant and
       Dennison in a vehicle defendant was driving. Dennison testified defendant handed Dennison
       the handgun and told him to run. Dennison testified he ran and dropped the handgun while
       being pursued by the police. The police then recovered the handgun.
¶8         Rock Island police officer Jeffrey Collins testified that, on November 30, 1999, he
       stopped a vehicle in which defendant was the driver and Dennison was the passenger. No
       other passengers were in the car. Officer Collins observed Dennison run from the vehicle and
       then ran after him. When Dennison jumped up on a fence, the handgun fell from the front
       of Dennison’s body. Officer Collins recovered the handgun, which was a Bersa .380
       semiautomatic pistol. The officer never observed the gun in defendant’s possession.
¶9         After hearing all of the evidence, a jury found defendant guilty of the Cassano’s robbery.
       No posttrial motion was filed. In July 2002, the trial court sentenced defendant to 30 years
       in prison to run consecutive to a sentence in another case. Defendant appealed and argued
       (1) the trial court denied him a fair trial by forcing defendant to wear an electroshock device
       during his trial, (2) the court improperly admitted evidence of three other armed robberies
       allegedly committed by defendant, (3) defendant did not receive effective assistance of
       counsel, (4) the cumulative effect of the errors in defendant’s case denied him a fair trial, and
       (5) defendant received an excessive sentence. People v. English, No. 4-02-0737, slip order
       at 1 (Dec. 23, 2004) (unpublished order under Supreme Court Rule 23). This court affirmed
       defendant’s conviction and sentence.
¶ 10       In October 2011, defendant filed the section 116-3 motion at issue in this appeal,


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       asserting fingerprint testing of the gun, clip, and bullets used in the Cassano’s robbery would
       establish he was never in possession of the weapon used in the Cassano’s robbery. The
       motion also asserted that, at the time of defendant’s trial, the police had custody of the
       handgun used in the Cassano’s robbery. To his motion, defendant attached (1) a portion of
       his trial transcript that indicated photographs of the handgun were admitted at his trial and
       (2) sections of police reports, which noted Raine and Legel told police about the robbery and
       handgun.
¶ 11        On December 7, 2011, the trial court entered a written order denying the motion. The
       court stated defendant’s motion lacked the necessary allegations to proceed to the second
       stage of the postconviction proceedings as it failed to state any constitutional violation. It
       also noted the issue of who actually possessed the handgun at the time of the offense was not
       a contested issue at defendant’s trial.
¶ 12        According to his notarized “proof/certificate of service,” defendant placed his notice of
       appeal in the institutional mail on January 5, 2012, and addressed it to the Adams County
       circuit clerk. Thus, defendant’s notice of appeal was timely filed. See People v. Smith, 2011
       IL App (4th) 100430, ¶ 13, 960 N.E.2d 595 (“A court will consider an incarcerated
       defendant’s postplea motion timely filed if the defendant placed it in the prison mail system
       within the 30-day period, regardless of the date on which the clerk’s office received or filed-
       stamped it.”). Moreover, defendant’s notice of appeal sufficiently complied with Illinois
       Supreme Court Rule 606 (eff. Mar. 20, 2009). Accordingly, this court has jurisdiction under
       Illinois Supreme Court Rule 603 (eff. Oct. 1, 2010).

¶ 13                                        II. ANALYSIS
¶ 14        In this appeal, defendant challenges the trial court’s denial of his section 116-3 motion,
       arguing the trial court erred by treating the motion as a postconviction petition and the cause
       should be remanded for a hearing on the merits of his motion. We review de novo a trial
       court’s ruling on a motion for testing under section 116-3 without an evidentiary hearing.
       People v. Pursley, 407 Ill. App. 3d 526, 529, 943 N.E.2d 98, 102 (2011). Moreover, we note
       this court is not bound by the trial court’s reasoning for its judgment and can affirm the trial
       court’s judgment on any ground in the record regardless of whether the trial court relied on
       it. People v. Durgan, 281 Ill. App. 3d 863, 867, 667 N.E.2d 730, 733 (1996). Thus, even if
       the court did apply the incorrect standard in evaluating defendant’s section 116-3 motion, we
       will affirm the denial if we find that the result would have been the same had the trial court
       applied the correct standard. See People v. Travis, 329 Ill. App. 3d 280, 285, 771 N.E.2d
       489, 492 (2002).
¶ 15        Section 116-3 of the Procedure Code (725 ILCS 5/116-3 (West 2010)) provides, in
       pertinent part, as follows:
                “(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, including comparison analysis of genetic
            marker groupings of the evidence collected by criminal justice agencies pursuant to the
            alleged offense, to those of the defendant, to those of other forensic evidence, and to

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            those maintained under subsection (f) of Section 5-4-3 of the Unified Code of
            Corrections, on evidence that was secured in relation to the trial 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 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 materially relevant to the defendant’s assertion of actual
                innocence even though the results may not completely exonerate the defendant;
                     (2) the testing requested employs a scientific method generally accepted within
                the relevant scientific community.”
       Accordingly, to establish a prima facie case for forensic testing under section 116-3, “the
       defendant must show that identity was the central issue at trial and that the evidence to be
       tested was subject to a sufficiently secure chain of custody.” People v. Johnson, 205 Ill. 2d
       381, 393, 793 N.E.2d 591, 599 (2002). Thereafter, the trial court “must determine whether
       this testing will potentially produce new, noncumulative evidence that is materially relevant
       to the defendant’s actual-innocence claim.” Johnson, 205 Ill. 2d at 393, 793 N.E.2d at 599.
¶ 16        On appeal, the State claims defendant’s motion fails to state a prima facie case because
       it did not allege (1) the gun was not fingerprint tested at the time of trial and (2) a sufficient
       chain of custody for the gun. Defendant’s pro se motion only alleges no fingerprint evidence
       was presented at his trial and requests analysis on a gun in police custody. Thus, the motion
       does not even allege in a conclusory fashion the two aforementioned elements required for
       obtaining section 116-3 relief. Accordingly, the trial court’s denial of the motion was proper
       on that basis alone. See People v. Franks, 323 Ill. App. 3d 660, 662, 752 N.E.2d 1274, 1276
       (2001) (affirming trial court’s denial of section 116-3 motion where the defendant failed to
       allege one of the elements required for relief).
¶ 17        Defendant points to the record to show a prima facie case. Even if that could save his
       inadequate motion, the record does not help defendant show a prima facie case because the
       gun at issue was evidence in multiple cases involving multiple defendants in counties in both
       Iowa and Illinois. Therefore, the record in this case or the fact no fingerprint evidence was
       presented at defendant’s trial does not negate the possibility the gun had been tested for


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       fingerprints at the time of defendant’s trial in one of the other many cases involving the gun.
       As to the custody of the gun, the record only shows that, near the time of defendant’s May
       2002 trial, the gun was in the possession of the Rock Island County circuit clerk’s office,
       which refused to release it due to a pending appeal. The gun itself was not admitted into
       evidence in the case at issue.
¶ 18       In support of his argument the record shows a prima facie case, defendant cites Johnson,
       205 Ill. 2d at 394, 793 N.E.2d at 600, in which our supreme court found the defendant had
       shown the evidence at issue was subject to a sufficiently secure chain of custody. The
       defendant’s petition alleged how the evidence was obtained, to what state agency it was
       delivered, and the fact the agency would have properly preserved and maintained the
       evidence. Johnson, 205 Ill. 2d at 391, 793 N.E.2d at 598. In response to the State’s argument
       the defendant had presented no evidence of the evidence’s location since the defendant’s
       1984 trial, the supreme court noted such evidence would not be available to the defendant.
       Johnson, 205 Ill. 2d at 394, 793 N.E.2d at 600. The supreme court further noted the evidence,
       “as a piece of real evidence admitted at trial, would have remained in the custody of the
       circuit court clerk after the defendant’s conviction.” Johnson, 205 Ill. 2d at 394, 793 N.E.2d
       at 600.
¶ 19       Here, unlike in Johnson, defendant did not even allege a sufficiently secure chain of
       custody. Moreover, the gun was not admitted into evidence in defendant’s case, just
       photographs of it. The record also does not show the gun was admitted at a trial in one of the
       cases involving it, as the appeal from the Rock Island County case may have involved a
       guilty plea. Thus, Johnson’s presumption does not apply.
¶ 20       Defendant also cites People v. Henderson, 343 Ill. App. 3d 1108, 1116, 799 N.E.2d 682,
       690 (2003), which states that, “[i]f the State wishes to object to the section 116-3 request
       based on insufficient evidence relating to the chain of custody, it should raise that matter in
       the trial court.” However, defendant did not even allege a sufficient chain of custody has
       preserved the gun. In this case, the State raises the insufficiency of the allegations in the
       petition as opposed to the insufficiency of the evidence supporting the allegation of a
       sufficient chain of custody. Thus, Henderson is also distinguishable.
¶ 21       Even if defendant’s motion was sufficient to make a prima facie case for section 116-3
       relief, the record does not show “the testing has the scientific potential to produce new,
       noncumulative evidence that is materially relevant, though not necessarily exonerating, to
       defendant’s claim of actual innocence.” Pursley, 407 Ill. App. 3d at 532, 943 N.E.2d at 104.
       Our supreme court has stated “evidence which is ‘materially relevant’ to a defendant’s claim
       of actual innocence is simply evidence which tends to significantly advance that claim.”
       People v. Savory, 197 Ill. 2d 203, 213, 756 N.E.2d 804, 810-11 (2001). The determination
       of whether evidence is materially relevant to defendant’s claim “requires an evaluation of the
       evidence introduced at trial, as well as the evidence the defendant seeks to test.” Johnson,
       205 Ill. 2d at 396, 793 N.E.2d at 601.
¶ 22       Defendant contends that, under the State’s evidence, the gun should have his fingerprints
       and/or Dennison’s fingerprints on it, and if his fingerprints are absent from the gun, it would
       be materially relevant to his claim he was not involved in the Cassano’s robbery. Moreover,


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       if another person’s fingerprints are recovered from the gun, it would go even further to
       bolster his defense Legel, Raine, and Dennison were fabricating their testimony to cover for
       another person. We disagree.
¶ 23        If defendant’s fingerprints are absent from the gun, it would not undermine any of the
       State’s evidence as to the events of the Cassano’s robbery. The evidence at trial showed three
       people participated in the Cassano’s robbery, two entered the restaurant and one person
       stayed in the car. Only one of the robbers had the gun, and both robbers were wearing gloves.
       Legel admitted he was the person that had the gun during the Cassano’s robbery. Thus, if the
       gun did not have defendant’s fingerprints, it would not eliminate him as one of the
       participants in the Cassano’s robbery. Moreover, a lack of defendant’s fingerprints would
       have little or no impact on the State’s collateral evidence of defendant handing Dennison the
       gun in the vehicle shortly before the police recovered it. Officer Collins testified he did not
       see defendant in possession of the gun when he stopped the vehicle, and thus the lack of
       defendant’s fingerprints would be cumulative of evidence at defendant’s trial. Further, other
       evidence connected defendant to the gun at issue. Officer Collin’s testimony showed
       defendant’s association with Dennison, who had possession of the gun used in the Cassano’s
       robbery. Moreover, Dennison and Legel testified defendant bought the gun. Therefore, a lack
       of defendant’s fingerprints on the gun would not significantly advance defendant’s claim of
       actual innocence.
¶ 24        If the gun had fingerprints of another party, it again would have little to no impact on
       defendant’s case. The gun was recovered more than two weeks after the Cassano’s robbery,
       and the evidence showed the gun had been used in three other robberies during that period
       of time. Legel admitted using the gun in the three other robberies. The evidence also showed
       the same group of people were not always involved in the robberies. Thus, the existence of
       another person’s fingerprints would also not significantly advance a claim of actual
       innocence.

¶ 25                                    III. CONCLUSION
¶ 26       For the reasons stated, we affirm the Adams County circuit court’s judgment. As part of
       our judgment, we award the State its $50 statutory assessment against defendant as costs of
       this appeal.

¶ 27      Affirmed.




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