1st Division
Filed: 4-23-07

No. 1-05-0515

THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the
                                                      )      Circuit Court of
                        Plaintiff-Appellee,           )      Cook County
                                                      )
       v.                                             )      Nos. 82 C 12459, 82 C 12460
                                                      )
GREGORY MOORE,                                        )      Honorable
                                                      )      Paul P. Biebel,
                        Defendant-Appellant.          )      Judge Presiding.

       JUSTICE ROBERT E. GORDON delivered the opinion of the court:

       Defendant Gregory Moore appeals from an order of the circuit court of Cook County

entered on February 24, 2005, denying his pro se motion for deoxyribonucleic acid (DNA)

testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3

(2004)). On appeal, defendant contends that (1) the trial court erred in denying 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 process rights by ruling on

issues beyond the understood scope of the hearing which resulted in the February 24, 2005,

dismissal. We affirm.

                                         BACKGROUND

       According to the memorandum opinion and order of the trial court the background to this

case is as follows:
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       At some time between midnight and 1 a.m., on October 27, 1982, T.R. was returning to

her apartment in the Lakeview neighborhood of Chicago. The defendant grabbed her, put a gun

to her head, and forced her into her apartment. While there, defendant repeatedly raped T.R. and

then compelled her to perform oral sex while defendant held a handgun directed at her head.

       On November 23, 1982, defendant entered the apartment of L.M. in the Lincoln Park

neighborhood of Chicago around 6:55 p.m. The defendant pointed a gun at her head, demanded

money and jewelry. After L.M. gave him the items he demanded, defendant bound, gagged, and

raped her.

       On December 10, 1982, at around 8 p.m., K.D. was returning to her apartment located in

the Wrigleyville neighborhood in Chicago. The defendant exited a vehicle driven by Virgie

Peterson and approached K.D. Defendant held a silver handgun to K.D.’s head and demanded

her money. He took approximately $60 and was driven away by Peterson in the same vehicle.

Only four hours later, defendant and Peterson robbed R.K. in the Lincoln Park neighborhood in

Chicago with the aid of the same silver handgun. R.K. was walking in a gangway of her building

when defendant approached her 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 head,

told her to stay quiet and demanded her money and wedding ring. When R.K. refused to

surrender her wedding ring, a struggle ensued during which defendant tried to remove the ring.

R.K. screamed and defendant threatened to shoot her. He took her purse and fled.

       Defendant was subsequently arrested with Peterson in the south side of Chicago and

charged with these crimes. He admitted his guilt to police officers after being found in

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

and sentenced to the Illinois Department of Corrections for 30 years on February 27, 1984. He

did not testify at the trial but admitted his guilt at sentencing.

        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 defendant’s guilty plea on these charges and defendant’s

previous conviction for the armed robbery of R.K., defendant was sentenced to 20 years for the

armed robbery and rape of L.M. concurrent with 20 years for the rape of T.R. and 20 years for the

armed robbery of K.D. in the Illinois Department of Corrections on July 24, 1984, to run

consecutively with 30 years previously given for a total of 50 years in the Illinois Department of

Corrections.

        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 represent the indigent defendant on October 2, 2003, 18 years

after his conviction. That same day, defendant filed an amended motion requesting DNA testing

and challenged the voluntariness of his guilty plea arguing that it was “based upon an unfulfilled

promise of leniency, and exoneration of the rape charges on a later date.”

        The trial court heard oral argument from both defense counsel and the State relating to the

motion for DNA testing on December 22, 2004. On February 24, 2005, the trial court denied

defendant’s motion and issued a 12-page memorandum opinion and order setting forth the

reasons for the denial. This appeal followed.

                                              ANALYSIS

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       On appeal, defendant first contends that the trial court erred in denying his motion for

DNA testing because the identity at issue requirement of section 116-3 is unconstitutional as

applied to him. Specifically, defendant argues that subsection (b)(1) of section 116-3 is

unconstitutional because it bars defendant and all those similarly situated who pleaded guilty to

crimes before the development of DNA technology from 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. Hockenberry, 316 Ill. App. 3d 752, 755

(2000). Review in such cases is de novo because the trial court’s decision regarding a section

116-3 motion is not based upon its assessment of the credibility of the witnesses but on its review

of the pleadings and the trial transcripts. Hockenberry, 316 Ill. App. 3d at 755.

       “Section 116-3 of the Code of Criminal Procedure of 1963 became effective January 1,

1998. Its purpose is to provide an avenue for convicted defendants who maintained their

innocence to test *** genetic material capable of providing new and dramatic evidence materially

relevant to the question of the defendant’s actual innocence.” People v. Henderson, 343 Ill. App.

3d 1108, 1114 (2003). Section 116-3 provides:

                “§ 116-3. Motion for fingerprint or forensic testing not available at trial

       regarding actual 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 performance of fingerprint or

       forensic DNA testing, including comparison analysis of genetic marker groupings

       of the evidence collected by criminal justice agencies pursuant to the alleged

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      offense, to those of the defendant, to those of other forensic evidence, and to those

      maintained under subsection (f) of Section 5-4-3 of the Unified Code of

      Corrections [730 ILCS 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 technology for the testing was not

      available at the time of trial. Reasonable notice 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;




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                       (2) the testing requested employs a scientific method

                generally accepted within the relevant scientific community.” 725

                ILCS 5/116-3 (West 2004).

       Defendant urges us on appeal, as he urged the trial court, to find the identity at issue

requirement recited in subsection (b)(1) of section 116-3 unconstitutional. However, it is well

established that cases should never be decided on constitutional grounds if alternate means 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 legal system 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 requirement of subsection (b)(2) of section 116-3. Subsection

(b)(2) requires the defendant to establish a sufficient chain of custody to offer proof that DNA

was collected from the crime scene, has not been altered, and is in the possession of the proper

authorities. People v. Johnson, 205 Ill. 2d 381, 394 (2002). In examining the chain of custody

requirement, courts look to proof of delivery of the evidence, presence and safekeeping. 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 material 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 chain of custody

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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, defendant has made absolutely no showing as to

where the items are now, more than 20 years after his arrest, nor done anything to establish a

chain of custody from the Chicago police department. Defendant does not allege with any

specificity if the proper authorities took DNA, when the DNA was received, or mention anything

pertaining to the current condition of the DNA. Therefore, the trial court properly denied

defendant’s section 116-3 motion for DNA testing because the defendant failed to meet the

requirements of subsection (b)(2) of the statute.

       We nevertheless address the defendant’s argument that subsection (b)(1) of section 116-3

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

is unconstitutional as applied to him because he could not knowingly waive a right that he did

not know existed. In other words, defendant argues 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 first examine whether subsection (b)(1) is constitutional on its face. Statutes carry a

very strong presumption that they are constitutional as written, and the party challenging the

constitutionality of a statute bears the burden of rebutting this presumption. People v.



       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’Connell, 365 Ill. App. 3d

872 (2006), appeal allowed, 221 Ill. 2d 662 (2006).

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Kimbrough, 163 Ill. 2d 231, 237 (1994). It is unclear whether the defendant challenges the

legislation under due process or equal protection grounds. Therefore, we address both.

       “The constitutional right to equal protection of the law guarantees that the State must treat

similarly situated persons in a similar manner.” Kimbrough, 163 Ill. 2d at 237. A law that

implicates neither a suspect classification nor a fundamental right is subject to the rational basis

test. People v. Shephard, 152 Ill. 2d 489, 500 (1992). Under this test, the statute need only be

rationally related to a legitimate state goal. Shephard, 152 Ill. 2d at 500. Further, our review

under the rational basis test is limited and generally deferential. Shephard, 152 Ill. 2d at 500.

       The test used to determine whether a statute violates due process is “ ‘whether the statute

is reasonably designed to remedy the evils the legislature has determined to be a threat to the

public health, safety and general welfare.’ ” Kimbrough, 163 Ill. 2d at 242, quoting People v.

Bradley, 79 Ill. 2d 410, 417 (1980), quoting Heimgaertner v. Benjamin Electric Manufacturing

Co., 6 Ill. 2d 152, 159 (1955) . Although expressed in different language, the tests used to

determine the constitutionality of a statute under due process and equal protection are identical.

Kimbrough, 163 Ill. 2d at 242. As is the case with challenges brought under equal protection, the

rational basis test is applicable if the legislation does not implicate a fundamental right 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 right, we apply the rational basis test.

       As noted, the purpose of section 116-3 “is to provide an avenue for convicted defendants

who maintained their innocence to test *** genetic material capable of providing new and

dramatic evidence materially relevant to the question of the defendant’s actual innocence.”

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Henderson, 343 Ill. App. 3d at 1114. “Balanced [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 legislature 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 cases where identity was truly at issue.

People v. Urioste, 316 Ill. App. 3d 307, 313 (2000). Moreover, it is entirely irrelevant for

constitutional purposes whether our conceived reason for the challenged legislation actually

motivated the legislature. Pursley, 341 Ill. App. 3d at 237, quoting People v. McLaughlin, 324

Ill. App. 3d 909, 915 (2001). Accordingly, we are not persuaded by defendant’s argument that

section 116-3(b)(1) violates his equal protection rights or his due process rights.

       Having determined that subsection (b)(1) of section 116-3 (725 ILCS 5/116-3(b)(1) (West

2004)) is constitutional on its face, we now examine whether subsection (b)(1) is

unconstitutional as applied to this defendant. Defendant argues that the trial court’s denial of his

DNA testing request violated his due process rights because defendant could not knowingly

waive what he did not know existed. We disagree.

       It is well settled that a defendant entering a guilty plea must be fully aware of the direct

consequences of the plea. People v. Williams, 188 Ill. 2d 365, 371 (1999). “If 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 guilty plea is not a prerequisite to the

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entry of a knowing and intelligent plea.” Williams, 188 Ill. 2d at 371. Furthermore, “Future or

contemplated, but uncertain, consequences are 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 all the

ramifications of a guilty plea personal to the defendant because the consequences of committing

an offense are so numerous and logically unforeseeable that to require more would impose upon

the trial court an impossible burden. Williams, 188 Ill. 2d at 371. A “court’s obligation to ensure

that a defendant understands the direct consequences of his plea encompasses only those

consequences of the sentence that the trial judge can impose.” Williams, 188 Ill. 2d at 371. A

court is under no obligation to advise the defendant of collateral consequences including “ ‘loss

of public or private employment, effect on immigration status, voting rights, possible auto license

suspension, possible dishonorable discharge from the military, or anything else.’ ” (Emphasis in

original.) Williams, 188 Ill. 2d at 372, quoting Cox v. State, 16 Kan. App. 2d 128, 130, 819 P. 2d

1241, 1243 (1991), quoting State v. Heitzman, 209 N.J. Super 617, 622, 508 A. 2d 1161, 1164

(1986). Defendant’s due process rights were not violated here because defendant need not have

been aware of the waiver of his DNA testing rights, a consequence which was collateral to the

entry of his guilty plea.

        Having determined that subsection (b)(1) of section 116-3 is constitutional both on its

face and as applied to this defendant, we now turn to the impact defendant’s guilty plea had on

his ability to seek DNA testing. Defendant cannot satisfy the identity at issue requirement of

subsection (b)(1) of section 116-3 because he pled guilty to the crime. “A plea of guilty is more

than a confession which admits that the accused did various acts; it is itself a conviction; nothing

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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 and

understandingly made, it admits every material fact alleged in the indictment and all the elements

of the crime with which an accused is legally charged, and obviates the need of any proof

whatsoever.’ ” People v. Young, 25 Ill. App. 3d 629, 634 (1974), quoting 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 beyond a reasonable doubt. People v. Moreno, 18 Ill. App.

3d 347, 348 (1974).

        There is a split among the districts of our appellate court as to whether a defendant can

seek DNA testing under section 116-3 notwithstanding defendant’s guilty plea at trial. One

Illinois appellate case categorically bars a defendant from the opportunity to later request DNA

testing when that defendant has pleaded guilty 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)

presupposes the existence of a trial and a conviction resulting from that trial, because without a

trial, there is no way to satisfy the identity at issue requirement.

        Another Illinois case reversed a trial court’s decision to deny DNA testing when a

defendant pleaded guilty but was not sure of his guilt. People v. O’Connell, 365 Ill. App. 3d 872

(1st Dist. 2006), appeal allowed, 221 Ill. 2d 662 (2006), involved a defendant who was convicted

of sexual abuse and murder. The defendant entered a guilty plea while contending that he had no

memory of the offense, presented testimony that he was drunk at the time of the offense, and

offered evidence that he often did not remember what he did when he was drunk. O’Connell,

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365 Ill. App. 3d at 874. An expert confirmed that alcoholics could experience such a pattern of

memory loss. O’Connell, 365 Ill. App. 3d at 874. The appellate court remanded the case to the

trial court because it was clear that by entering his guilty plea the defendant did not intend to

concede identity. O’Connell, 365 Ill. App. 3d at 878. Rather, he entered the guilty plea because

the evidence against him seemed overwhelming. O’Connell, 365 Ill. App. 3d at 878.

       We are not prepared to hold, as the Fifth District of our court held, that a guilty plea

categorically divests a defendant of the opportunity to later request DNA testing. However, we

also find O’Connell inapplicable to this case. As noted, O’Connell 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 defendant in this case ever protested his actual

guilt prior to entering his guilty plea. We therefore hold that the trial court correctly determined

that defendant could not satisfy section 116-3(b)(1).

       Defendant also argues that his guilty plea was involuntary because it was based on an

“unfulfilled promise” of leniency. Defendant suggests he was 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 sentenced to a consecutive term of

imprisonment causing defendant to receive a total prison term of 50 years. We are not persuaded

by defendant’s argument.

       As the trial court noted, the defendant failed to object to the plea agreement in open court

when the sentencing judge sentenced him to three 20-year concurrent prison terms to run

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consecutively with the 30-year prison term he received for the armed robbery of R.K. causing

defendant to serve a total prison term of 50 years although he was expecting a total term of 30

years according to the alleged promise of leniency. The defendant also waited more than 20

years to challenge the voluntariness of his plea. We therefore find that the defendant’s guilty

plea was knowingly and voluntarily made and defendant’s challenge to the plea disingenuous.

        Defendant’s final argument is that the trial court violated defendant’s due process rights

by ruling on issues beyond the understood scope of the hearing, which resulted in the February

24, 2005, dismissal. Defendant claims that the oral arguments held on December 22, 2004, were

held solely to determine the constitutionality of subsection (b)(1) of section 116-3. Specifically,

defendant claims that it was error for the trial court to reach the issue regarding the sufficiency of

defendant’s section 116-3 motion for DNA testing because defendant was not prepared to

address that issue at oral argument.

        The record does not indicate that the December 22, 2004, oral argument was set only for

arguments regarding the constitutionality of subsection (b)(1) of section 116-3. If there is

evidence indicating that the hearing was restricted to that legal issue, defendant has failed to

provide it in the record of this case.

        “The appellant has the burden of providing a sufficiently complete record on appeal so

that the reviewing court is fully informed regarding the issues to be resolved; 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. Odumuyiwa, 188 Ill. App. 3d 40, 45-46 (1989). The

only evidence of the restriction on the hearing was defense counsel’s assertion, contained in the

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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 transcript is defense counsel’s argument

regarding the issue of actual innocence and the availability of DNA technology at the time of

defendant’s guilty plea. Moreover, defense counsel had more than a year to conduct discovery

and seek out DNA, if it existed in this case. As noted, the public defender was appointed to

defendant’s case on October 2, 2003, and oral argument on defendant’s section 116-3 motion

was held on December 22, 2004. It does not conclusively appear from the transcript that the

hearing on December 22, 2004, was restricted solely to the constitutional question, nor does it

appear that defendant did not have ample opportunity to seek discovery to satisfy the chain of

custody element of section 116-3. Accordingly, we find defendant’s argument not persuasive.

        Defendant has made no argument in his brief that the trial court erred when it ruled that

defendant’s section 116-3 motion was insufficient because defendant 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 defendant’s motion was insufficient is waived. 210 Ill. 2d

R. 341 (h)(7).

                                           CONCLUSION

        For the foregoing reasons we affirm the judgment of the circuit court of Cook County.

This court finds that defendant’s motion for DNA testing was properly 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 sufficiency of the

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defendant’s motion because nothing in the record indicates that the scope of the hearing was

restricted to argument regarding the constitutionality of subsection (b)(1) of section 116-3.

       Affirmed.

       CAHILL and GARCIA, JJ., concur.




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