                                         2017 IL App (3d) 150861

                              Opinion filed November 20, 2017
     _____________________________________________________________________________

                                                 IN THE


                                  APPELLATE COURT OF ILLINOIS


                                            THIRD DISTRICT


                                                   2017 


     THE PEOPLE OF THE STATE OF ILLINOIS, )       Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
           Plaintiff-Appellee,              )     Will County, Illinois.
                                            )
           v. 	                             )     Appeal No. 3-15-0861

                                            )     Circuit No. 07-CF-2547

     SYLWESTER GAWLAK,                      )

                                            )     Honorable Daniel J. Rozak,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

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

            Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion. 



                                                OPINION

¶1          Defendant, Sylwester Gawlak, appeals the Will County circuit court’s denial of his

     postconviction motion for deoxyribonucleic acid (DNA) testing under section 116-3 of the Code

     of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2014)). Specifically, he argues the

     court’s denial of his motion “must be reversed and the case remanded for further proceedings”

     because the court (1) “denied [him] his constitutional right to retain counsel to represent him on

     his motion” and (2) “erred when it would not allow him to present an expert in DNA testing to

     testify at the hearing on the motion.” We vacate the court’s denial of his postconviction motion

     for DNA testing and remand for further proceedings.
¶2                                                FACTS

¶3           Following an April 2009 trial, a jury convicted defendant of two counts of predatory

     criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2006)) and one count of aggravated

     criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2006)). Thereafter, the trial court

     sentenced defendant to mandatory consecutive terms of six years’ imprisonment for each count

     of predatory criminal sexual assault and three years’ imprisonment for aggravated criminal

     sexual abuse.

¶4           In August 2011, defendant, pro se, filed a petition for postconviction relief pursuant to

     the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)), followed by a

     supplemental petition for postconviction relief in December 2013. The trial court appointed the

     Office of the State Appellate Defender (OSAD) to represent defendant on his postconviction

     petition.

¶5           In March 2015, defendant filed a pro se “petition for relief from void order” pursuant to

     section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2014)).

     Defendant later retained private counsel to represent him on this motion.

¶6           In May 2015, defendant filed a pro se “motion for post-conviction forensic DNA testing”

     pursuant to section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2014)).

     Specifically, he sought mitochondrial DNA and polymerase chain reaction short tandem repeat

     (PCR-STR) DNA forensic testing of hair and clothing collected by the State. He further

     requested that the hair and “rape kit” evidence be tested for DNA using the PCR-STR and

     mitochondrial testing method and that the clothing be tested for “touch DNA.”

¶7           At a September 2015 hearing, different private counsel than the one representing

     defendant on his section 2-1401 motion appeared before the trial court and indicated his intent to



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       file a “limited scope appearance” under Illinois Supreme Court Rule 13(c)(6) (eff. July 1, 2013)

       to represent defendant on his motion for DNA testing. The court denied private counsel’s request

       to enter a limited scope appearance but informed counsel that he was “certainly welcome to [file

       an appearance] on the post-conviction proceeding.” Following a November 2015 hearing in

       which defendant appeared pro se, the court denied defendant’s motion for DNA testing.

¶8            This appeal followed.

¶9                                               ANALYSIS

¶ 10          On appeal, defendant argues that the trial court’s denial of his postconviction motion for

       DNA testing “must be reversed and the case remanded for further proceedings” because the court

       (1) “denied [him] his constitutional right to retain counsel to represent him on his motion” and

       (2) “erred when it would not allow him to present an expert in DNA testing to testify at the

       hearing on the motion.”

¶ 11          Rule 13(c)(6) provides that an attorney may make a limited scope appearance on behalf

       of a party in a civil proceeding by filing a notice of limited scope appearance in which he

       “identif[ies] each aspect of the proceeding to which the limited scope appearance pertains.” Ill.

       S. Ct. R. 13(c)(6) (eff. July 1, 2013). The State maintains that the limited-scope-appearance rule

       does not apply here because the issue concerns a criminal proceeding, not a civil one. According

       to the State, “[a] motion for forensic DNA testing is available only to convicted criminal

       defendants pursuant to the Code of Criminal Procedure.” We note, however, the fact that the

       motion for DNA testing at issue here may only be brought by a convicted criminal does not

       necessarily make the subsequent proceedings criminal in nature. In fact, even proceedings under

       the Act (725 ILCS 5/122-1 to 122-7 (West 2010)), which are brought only by convicted persons,

       are considered civil in nature. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (noting that



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       postconviction proceedings are “not part of the criminal proceeding itself” and are “in fact

       considered to be civil in nature”); People v. Johnson, 191 Ill. 2d 257, 270 (2000) (“A post-

       conviction proceeding is not part of the criminal process. Rather, it is a collateral attack on the

       judgment of conviction and is civil in nature.”). Similarly, a postconviction motion for DNA

       testing brought under the Code of Criminal Procedure is not part of the criminal process and, as

       such, is civil in nature.

¶ 12           The State also contends that defendant has no constitutional or statutory right to counsel

       in regard to his DNA motion. In particular, the State asserts that defendant has (1) no

       constitutional right to counsel because that right “applies during a defendant’s trial and first

       appeal of right and no further” and (2) no statutory right to counsel because section 116-3 of the

       Code of Criminal Procedure does not convey such a right. While defendant may not have a

       constitutional or statutory right to appointed counsel, our review of relevant authority indicates

       that defendant does have a constitutional due process right to retain private counsel to represent

       him on any matter he wishes.

¶ 13           Notably, in Powell v. Alabama, 287 U.S. 45, 68 (1932), the United States Supreme Court

       explained that “notice and hearing are preliminary steps essential to the passing of an enforceable

       judgment, and that they, together with a legally competent tribunal having jurisdiction of the

       case, constitute basic elements of the constitutional requirement of due process of law.” The

       Court further stated that a hearing “has always included the right to the aid of counsel when

       desired and provided by the party asserting the right.” Id. The Court concluded, “[i]f in any case,

       civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel,

       employed by and appearing for him, it reasonably may not be doubted that such a refusal would

       be a denial of a hearing, and, therefore, of due process in the constitutional sense.” Id. at 69.



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       Thereafter, citing Powell, the Seventh Circuit Court of Appeals found that the right to retain

       counsel in a civil case was protected under the due process clause and that “if the prisoner hires a

       lawyer—or a lawyer is willing to work for the prisoner for free—the judge may not refuse to

       accept filings from the lawyer.” (Emphasis in original.) Guajardo-Palma v. Martinson, 622 F.3d

       801, 803 (7th Cir. 2010).

¶ 14          Based on our review of the record and the relevant authority as discussed above, we

       conclude that the trial court’s denial of private counsel’s request to enter a limited scope

       appearance on defendant’s DNA motion was arbitrary and violated defendant’s due process

       rights. The fact that defendant had other pending motions in which he was represented by other

       counsel is irrelevant. The section 2-1401 motion (in which defendant is represented by private

       counsel) and the petition for postconviction relief (in which defendant is represented by OSAD)

       are separate and distinct proceedings that have no bearing on the DNA motion at issue here. In

       short, the trial court should have allowed private counsel’s request to enter a limited scope

       appearance solely on the DNA motion.

¶ 15          We recognize the State also argues any error in the dismissal of defendant’s DNA motion

       was harmless because its dismissal is inevitable. However, based on the facts of this case, we

       decline to address the State’s contentions regarding harmless error. Simply put, defendant had a

       constitutional due process right to have private counsel represent him on his DNA motion.

¶ 16          Accordingly, we vacate the trial court’s denial of defendant’s postconviction motion for

       DNA testing and remand for further proceedings on the motion during which defendant may

       retain private counsel if he so chooses. As such, we need not address whether the trial court erred

       by denying defendant’s request to allow expert testimony at the hearing on the DNA motion.




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       Finally, we express no opinion as to the merits or the lack thereof of defendant’s motion for

       DNA testing.

¶ 17                                          CONCLUSION

¶ 18          For the foregoing reasons, we vacate the judgment of the circuit court of Will County as

       it pertains to the denial of defendant’s postconviction motion for DNA testing and remand for

       further proceedings.

¶ 19          Judgment vacated; cause remanded.




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