                                                SIXTH DIVISION
                                                April 14, 2006




No. 1-04-2154

THE PEOPLE OF THE STATE OF ILLINOIS,       )    Appeal from the
                                           )    Circuit Court of
             Plaintiff-Appellee,           )    Cook County
                                           )
     v.                                    )
                                      )
JOHN O'CONNELL,                            )    Honorable
                                           )    Stanley Sacks,
             Defendant-Appellant.          )    Judge Presiding


     PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

     John O'Connell, who pled guilty in 1992 to a murder charge,

moved for evidentiary DNA testing in 2004.     The trial court

dismissed the motion sua sponte and without giving defendant an

opportunity to argue in support of his motion.     We hold that the

statute that permits motions for postconviction DNA testing does

not allow summary dismissal of such motions without notice to the

defendant.     Because defendant presented evidence that he had no

memory of the offense when he pled guilty, and he pled guilty

based solely on the strength of the evidence against him, counsel

might have been able to argue persuasively for construing the

statute to permit DNA testing under the circumstances of this

case.     Thus, we cannot consider the procedural error harmless.

Accordingly, we reverse and remand for further proceedings on

defendant's motion, with proper notice to defendant.

                              BACKGROUND

     On September 7, 1990, around 1 p.m., a police officer
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responding to an emergency call found Toyoko Hirai naked and

bleeding profusely on the floor of a flower shop.    Paramedics

undertook emergency measures to save Hirai.    After a brief

discussion with two men at the scene, the officer went to a

nearby tavern where he found defendant sitting in bloodied

clothes.    The officer escorted defendant out of the tavern.    One

of the men at the scene said he saw defendant leave the flower

shop shortly before 1 p.m.    The officer found more than $150,

including more than $10 in coins, in defendant's pockets.

Another officer found marks on the cash register in the flower

shop indicating that someone had pried the register open.      Blood

smears covered the register.    Officers also found a bloody knife

in defendant's van.

     Later that day an assistant State's Attorney wrote out a

statement defendant signed before falling asleep.    Pictures taken

at the time defendant signed the statement show his bloodshot

eyes.   When Hirai died prosecutors charged defendant with first

degree murder, aggravated criminal sexual assault and armed

robbery.    The court denied defendant's motion to suppress the

written statement.    Defendant then pled guilty to the charges.

     The prosecutor presented a factual basis for the plea.

According to the written statement, defendant arrived at the

tavern near the flower shop around 10 a.m., and he began drinking

tequila and beer.    He left around 12:30 p.m. and went to the

flower shop.   He threatened Hirai with the knife to coerce her to


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have sexual intercourse with him.      He used the knife to pry open

the cash register.

     A witness who saw defendant leaving the store found Hirai

bleeding on the floor.   The witness and another man ran after

defendant.   They caught up with defendant at his van and brought

him back to the flower shop.   One witness called the police and

the other went to look in on Hirai.      Defendant wandered out of

the shop back to the tavern, where the officer found him a few

minutes later.

     The prosecutor told the court that the blood on defendant's

clothes came from Hirai.   The prosecutor did not detail the

scientific evidence for the claim.

     Several of defendant's relatives testified in mitigation

about defendant's terrible childhood, his good nature, and the

effect of alcohol on his actions.      Defendant's wife testified

that defendant screamed at her and struck her when he was drunk.

 When he did so he usually passed out and when he awoke he would

remember nothing about the incident.      She said that on the

morning of the murder, defendant smoked some "wicky sticks,"

which are marijuana cigarettes laced with stronger narcotics

"[l]ike PCP, Angel Dust, LSD."     A bartender confirmed that

defendant stayed in the tavern, drinking, from 10 a.m. that

morning until some time after 12:30 p.m.

     Defendant told the court that he did not remember anything

about the crime.   He hoped for a chance to warn others about the


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evil effects of alcohol.   A psychologist explained that

alcoholics, when drunk, can appear to be fully aware of what they

are doing.   "But once they lose consciousness, either going to

sleep or falling unconscious because of the degree of

intoxication, upon awakening they really have no recall as to

what they said, what they did."     The psychologist explained that

an alcohol-induced blackout can damage the brain cells involved

in the formation of memory.   Thus, even if defendant actually

told the assistant State's Attorney all the facts in the

statement the assistant State's Attorney wrote, defendant might

honestly have had no recollection of the incident at all when he

later awoke in his jail cell.

     On May 6, 1992, the court sentenced defendant to natural

life in prison, with lesser concurrent sentences on the other

charges.

     In April 2004 defendant filed a motion to have DNA testing

of some evidence.   On April 13, 2004, the trial court scheduled a

hearing on the motion for April 29, 2004.     The record shows no

notice to defendant of the proceedings held on April 13, 2004, or

of the hearing scheduled for April 29, 2004.     Neither defendant

nor his attorney came to court on April 29, but an assistant

State's Attorney appeared in court.     The court dismissed the

motion on grounds that defendant had not contested the identity

of the offender in the original proceedings, because defendant

pled guilty.   The record shows that the court ordered the clerk


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to notify defendant of the disposition of his motion.        Defendant

filed a timely appeal.

                               ANALYSIS

     We review de novo the trial court's decision summarily

dismissing the motion for DNA testing.       People v. Franks, 323

Ill. App. 3d 660, 662 (2001).     Section 116-3 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2004)) governs

motions for postconviction DNA testing of evidence.      That section

provides:

             "(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 *** 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 (West 2004).

     Defendant argues that the court erred by dismissing the

motion in an ex parte hearing, without providing him notice or


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any opportunity to argue in favor of his motion for DNA testing.

            "'An elementary and fundamental requirement of due

     process in any proceeding which is to be accorded

     finality is notice reasonably calculated, under all the

     circumstances, to apprise interested parties of the

     pendency of the action and afford them an opportunity

     to present their objections.'" In re Application of the

     County Collector, 217 Ill. 2d 1, 33 (2005), quoting

     Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
     306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657

     (1950).

     Illinois courts have applied this general principle to

postconviction proceedings.   See People v. Bounds, 182 Ill. 2d 1,

5 (1998).    Our supreme court has reminded us that "the protection

of a defendant's right to procedural due process in post-

conviction proceedings is of critical importance."    People v.

Kitchen, 189 Ill. 2d 424, 435 (2000).

     The prosecution contends that section 116-3 permits summary

disposition of DNA motions without notice or opportunity to argue

because section 116-3 does not include any provisions regarding

procedures for deciding such motions.   Defendant asks us to treat

section 116-3 motions like motions under section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)).    That

section, governing postjudgment motions, similarly includes no

provisions expressly requiring notice or an opportunity to argue


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prior to disposition.     Some defendants convicted of crimes have

brought petitions under section 2-1401 to contest their

convictions or sentences.

     In People v. Pearson, 216 Ill. 2d 58 (2005), the defendant

brought such a petition.    The trial court first decided to

construe the petition as one brought under the Post-Conviction

Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)), rather than

section 2-1401.   The trial court then applied the express

provisions for summary dismissals under the Post-Conviction

Hearing Act and dismissed the petition without notice to

defendant.   Our supreme court first acknowledged that the trial

court had authority to recharacterize a petition nominally

brought under section 2-1401 as a petition under the Post-

Conviction Hearing Act.    Pearson, 216 Ill. 2d at 66.   But the

court held that before the trial court could so recharacterize a

petition, due process required the court (1) to provide notice to

the defendant of its intention to treat the petition as one

brought under the Post-Conviction Hearing Act, (2) to warn the

defendant of the effect of the recharacterization on defendant's

rights, and (3) to allow the defendant the opportunity to

withdraw or amend the pleading.     Pearson, 216 Ill. 2d at 68.
     The careful delineation of the necessary procedures appears

superfluous if the trial court had authority to dismiss summarily

the 2-1401 petition.    Several panels of the appellate court have

concluded that the trial court lacks authority to dismiss


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summarily 2-1401 petitions.   E.g., People v. Edwards, 355 Ill.

App. 3d 1091, 1100 (2005) (and cases cited therein).    In Edwards

the court distinguished summary dismissals from sua sponte

dismissals, and noted that the court had authority to dismiss

frivolous petitions sua sponte.

     "Sua sponte action means only that the court initiates

     a motion, which then follows the otherwise applicable

     procedures, including notice of the proposed judicial

     action and the opportunity to argue against such

     action, as required in fairness to the litigants."

     Edwards, 355 Ill. App. 3d at 1100.
The court noted the express provision in the Post-Conviction

Hearing Act for summary dismissals without notice and an

opportunity to respond, and the court emphasized that section 2-

1401 lacked any such provision.

     "The summary procedures under the Act were specifically

     set by the legislature. It is not our role to make

     these procedures available under other circumstances.

     It is up to the legislature to do so if it sees fit."

     Edwards, 355 Ill. App. 3d at 1100.
     The Appellate Court for the Fourth District has rejected

Edwards and similar cases, arguing that summary dismissal must be

acceptable for section 2-1401 petitions because courts have found

that procedure acceptable for petitions under the Post-Conviction

Hearing Act.   People v. Bramlett, 347 Ill. App. 3d 468, 472-73


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(2004).     As the Appellate Court for the Second District cogently

answered, "The Bramlett court seems to believe that the trial

courts may mix and match elements of the various procedural

provisions without the parties knowing in advance what procedure

will be used."    People v. Keller, 353 Ill. App. 3d 830, 835

(2004).

     In People v. Dyches, 355 Ill. App. 3d 225, 229 (2005), a

panel of the Appellate Court for the First District held that

"summary dismissal, which is a drastic procedure, should not be

read into the procedures provided by section 2-1401."     However,

the court held that harmless error analysis applied, permitting

affirmance of the dismissal of a petition that had "patently

incurable" defects.    Dyches, 355 Ill. App. 3d at 229.
     Section 116-3, like section 2-1401, gives a person convicted

of a crime a limited right to challenge the conviction, and it

also lacks any express procedural provision.    Following the

reasoning of Edwards and Dyches, we refuse to read special

summary dismissal procedures into section 116-3.    The trial court

must, at a minimum, provide notice to the defendant of its sua

sponte motion to dismiss, and the court must give the defendant

an opportunity to respond.

     We recognize that our holding conflicts with the Fourth

District's holding in People v. Stevens, 315 Ill. App. 3d 781

(2000).     In that case the trial court summarily dismissed the

defendant's motion for postconviction DNA testing pursuant to


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section 116-3.    The appellate court held that the absence of any

statutory procedural provision in section 116-3 entailed the

adoption of summary dismissal procedures.    Stevens, 315 Ill. App.

3d at 784.     In light of general principles regarding the need for

notice and an opportunity to respond to potentially dispositive

motions, we refuse to read into a silent statute a special

summary dismissal procedure the legislature did not expressly

adopt.   We find that the court in Stevens failed to heed our

supreme court's emphasis on the "critical importance" of

protecting a defendant's procedural rights in postconviction

proceedings.    See Kitchen, 189 Ill. 2d at 435.
     Nonetheless, following Dyches, we further hold that harmless

error analysis applies to the summary dismissal of a

postconviction petition for DNA testing of evidence.    The trial

court dismissed the petition because defendant pled guilty to the

charges, and therefore, the court reasoned, he could not meet the

statutory requirement of showing that "identity was the issue in

the trial." 725 ILCS 5/116-3(b)(1) (West 2004).

     A Missouri statute, like section 116-3 in Illinois, permits

postconviction DNA testing in certain instances.    Mo. Rev. Stat.

'547.035 (Supp. 2001).    The Missouri statue requires the

petitioner to show that "[i]dentity was an issue in the trial."

Mo. Rev. Stat. '547.035 (Supp. 2001).    The Supreme Court of

Missouri construed the statute in Weeks v. State, 140 S.W.3d 39

(Mo. 2004).    In that case the defendant pled guilty to rape and


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nine years later he sought DNA testing of the semen recovered

from the victim.   The trial court summarily dismissed the

petition because the defendant pled guilty.   The supreme court

reversed, holding:

     "The statute's requirements are met if the movant

     demonstrates that up to the time of the plea -- as that

     is as far in the trial process as the case proceeded --

     identity was at issue."   Weeks, 140 S.W.3d at 47.

     The Missouri court's resolution expressly allows defendants

to obtain DNA testing if they entered guilty pleas while

protesting innocence.    See North Carolina v. Alford, 400 U.S. 25,
27 L. Ed. 2d 162, 91 S. Ct. 160 (1970).   Several state

legislatures have expressly allowed defendants who pled guilty to

obtain postconviction DNA testing of the evidence against them.

See Ohio Rev. Code Ann. '2953.82 (LexisNexis 2006); State v.

Smith, 34 Kan. App. 2d 368, 371-72, 119 P.3d 679, 683 (2005).     We

note that all of these statutes, including the Missouri statute,

differ significantly from the Illinois statute.   Nonetheless,

Illinois courts might choose to construe some parts of the

statutes similarly.

     Here, defendant told the court he had no memory of the

offense, and he presented supporting testimony that he was drunk

at the time of the offense, and he often did not remember what he

did when he was drunk.   An expert affirmed that alcoholics can

experience such a pattern of memory loss.   The prosecution


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claimed that Hirai's blood on defendant's clothes helped prove

that he murdered her, but the prosecutor did not say what tests

substantiated the claim.     If the blood on defendant's clothes did

not come from Hirai, one might doubt that defendant committed the

murder.

     The evidence against defendant appears overwhelming, and it

fully justified his decision to plead guilty even assuming he did

not remember the crime.     However, an adept attorney might

persuasively argue for interpreting section 116-3 to permit DNA

testing under the circumstances of this case, despite the guilty

plea.   This court and the trial court could both benefit from a

fuller development of the arguments concerning interpretation of

section 116-3.   Because we cannot conclude that the procedural

defects had no prejudicial effect, we reverse and remand for

proper notice of the court's sua sponte motion to dismiss, and to

give defendant an opportunity to respond to the dispositive

motion.

     Reversed and remanded.

     FITZGERALD-SMITH, J., concurs.

     TULLY, J., dissents.

     Justice TULLY, dissenting,



     I dissent from the majority opinion because I believe the

dismissal of the petition is inevitable and further proceedings

in the circuit court will only delay dismissal.


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     I wholly agree with the majority that summary dismissal

should not be read into the procedure provided by section 116-3

as it is unfair to a defendant, when faced with the proposed

dismissal of his section 116-3 petition, to be deprived of notice

and an opportunity to respond.    I further agree with the majority

that we should apply the harmless error analysis to the circuit

court's summary dismissal of defendant's postconviction petition

for DNA testing.

     I disagree with the majority because in this case I believe

the procedural defects had no prejudicial effect.    Here, the

defendant was required to make a prima facie case that identity

was the issue in the trial which resulted in his conviction.     The

record clearly shows that identity was not an issue because the

defendant pled guilty.   Moreover, postconviction DNA testing is

predicated upon a claim of actual innocence.   The defendant has

never wavered from his guilty plea and has never claimed he is

actually innocent.

     In the instant case, identity was never at issue.    The

defendant here did not deny committing the acts charged, pled

guilty and did not have a trial.    Thus, the inherent defects in

defendant's 116-3 petition are patently incurable.    I find that

regardless of whether the circuit court erred in failing to

provide defendant with notice and an opportunity to be heard,

defendant could not have cured the inherent defects in his 116-3

petition because he could not make a prima facie case that


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identity was at issue.   The dismissal of the petition is

inevitable and further proceedings will only delay that result.

     Because I find that any procedural error was harmless, I

would affirm the order of the circuit court.




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