                            ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Patterson, 2012 IL App (4th) 090656




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     RICKY A. PATTERSON, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-09-0656


Rule 23 Order filed         June 8, 2012
Rule 23 Order               July 11, 2012
withdrawn
Opinion filed               June 8, 2012
Held                        Defendant was entitled to the reasonable assistance of counsel on his
(Note: This syllabus        postconviction petition seeking new DNA testing under section 116-3 of
constitutes no part of      the Code of Criminal Procedure, where postconviction counsel was
the opinion of the court    appointed for defendant, counsel incorporated defendant’s pro se petition
but has been prepared       into an amended postconviction petition, and counsel filed a Supreme
by the Reporter of          Court Rule 651(c) certificate but then did not present evidence or make
Decisions for the           arguments concerning the new DNA testing, thus effectively creating a
convenience of the          procedural bar to defendant’s section 116-3 motion; the denial of the
reader.)
                            petition was reversed and the cause remanded to determine whether
                            defendant can satisfy the requirements of section 116-3.


Decision Under              Appeal from the Circuit Court of Champaign County, No. 02-CF-1597;
Review                      the Hon. Charles McRae Leonhard, Judge, presiding.



Judgment                    Affirmed in part and reversed in part; cause remanded with directions.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Johannah B. Weber and Paige Clark Strawn, both of State Appellate
                           Defender’s Office, of Mt. Vernon, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Anastacia R. Brooks, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justices Pope and Knecht concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant, Ricky A. Patterson, appeals the trial court’s denial of his motion for forensic
        testing not available at trial pursuant to section 116-3 of the Code of Criminal Procedure of
        1963 (Criminal Procedure Code) (725 ILCS 5/116-3 (West 2008)). He contends he was
        denied a reasonable level of assistance of counsel because his counsel failed to provide
        sufficient information to the trial court in support of his motion. We agree and reverse.

¶2                                        I. BACKGROUND
¶3           In April 2003, a jury convicted defendant of first degree murder (720 ILCS 5/9-1 (West
        2002)), arson (720 ILCS 5/20-1 (West 2002)), and concealment of a homicide (720 ILCS
        5/9-3.1 (West 2002)) based on the June 18, 2002, murder of Derrick Prout. Bloodstains on
        the carpet of defendant’s rental home matched (1) an unidentified male and (2) Prout. The
        trial court sentenced defendant to 50 years’ imprisonment for murder, 5 years’ imprisonment
        for concealment of a homicide, to run consecutively to the murder sentence, and a concurrent
        5-year sentence on the arson conviction. This court affirmed the convictions and sentences
        on direct appeal in People v. Patterson, 347 Ill. App. 3d 1044, 1056, 808 N.E.2d 1159, 1169
        (2004).
¶4           On June 15, 2006, defendant filed a pro se postconviction petition and separate motion
        for deoxyribonucleic acid (DNA) testing pursuant to section 116-3 of the Criminal Procedure
        Code. Defendant also filed a motion to proceed in forma pauperis and for the appointment
        of counsel. Defendant’s postconviction petition did not address section 116-3. In his separate
        section 116-3 motion, defendant alleged that his claim of actual innocence is predicated upon
        DNA testing and “independent DNA testing in this case [would] reveal newly discovered
        evidence of the defendant[’s] innocence.”
¶5           On June 21, 2006, the trial court appointed counsel for defendant on his postconviction

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     petition. In 2007, defendant’s appointed counsel amended the postconviction petition but did
     not file an amended section 116-3 motion on defendant’s behalf. The amended
     postconviction petition included an amended section 116-3 claim, stating that defendant
     “believes he has met the requirements of 725 ILCS 5/116-3 [(West 2006)] to have a new
     DNA testing completed: more accurate DNA testing is available now than at the time of the
     trial, identity was an issue at trial, and the State has maintained custody of items to be
     retested.”
¶6        The State filed an answer to defendant’s amended postconviction petition denying
     defendant had met the requirements of section 116-3 for new DNA testing. The State alleged
     defendant had “failed to show what form of DNA testing, not available at the time of trial,
     would result in material non-cumulative evidence.”
¶7        Between July 2007 and January 2008, the trial court held an evidentiary hearing on
     defendant’s amended postconviction petition. The State made a motion for a directed finding
     on several claims in defendant’s amended postconviction petition, alleging defendant had not
     made a prima facie case as to those issues. The State specifically addressed those claims
     referenced in paragraph 3, subsections (b), (c), (d), (e), (f), (g), and (l) of defendant’s
     amended postconviction petition. Defense counsel responded “[the State] does not comment
     on [subsections] [(m)] and [(n)]. [The State] has agreed that [(a)], [(h)], [(j)], [(k)], and [(o)]
     there is prima facie evidence. So I just want to talk about the ones [the State] objects to.”
     Counsel was accurate in his statement that the State did not comment on subsections (m) and
     (n). The record reflects, however, that the State only agreed that defendant had presented
     prima facie evidence on claims (a), (h), and (j). The State never agreed that defendant had
     presented prima facie evidence on subsections (k) and (o). These sections were never
     addressed by the State in its motion for a directed verdict. (Defendant’s amended
     postconviction petition shows that subsection (o) referred to defendant’s section 116-3
     request, and subsection (k) referred to an ineffective assistance of counsel claim regarding
     counsel’s failure to object to certain testimony of the DNA witness.) Moreover, the record
     shows that defense counsel never presented evidence or testimony in relation to defendant’s
     section 116-3 request (subsection (o)) at any point during the hearing. Accordingly, the State
     never had an opportunity to refute, or acquiesce to, defendant’s argument on his section 116-
     3 request.
¶8        At the conclusion of the hearing, the trial court asked the parties to submit written
     arguments. The record reflects the State filed its argument on June 20, 2008. In the State’s
     written argument, it asserted defendant did not meet the requirements of section 116-3
     because he “failed to articulate what form of DNA testing, not available at the time of trial,
     would result in material non-cumulative evidence.”
¶9        The trial court’s docket sheet does not reflect that defendant filed his written argument.
     The record on appeal also lacks a copy of defendant’s argument. However, the court’s May
     29, 2009, order denying defendant’s petition cites defendant’s written argument. In that
     order, the court denied each of defendant’s claims, including paragraph 3, subsections (a) to
     (o). The court denied defendant’s section 116-3 (subsection (o)) request because he did not
     identify a more accurate form of testing, did not specify how that form of testing was
     unavailable at trial, and failed to identify any evidence contemplated by section 116-3 that

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       was not first tested and now should be.
¶ 10      In 2009, defendant filed a pro se motion to reconsider the denial of his amended
       postconviction petition. Defendant’s motion was written in general terms and did not
       specifically reference any one issue from the postconviction proceedings. The trial court
       denied defendant’s motion to reconsider.
¶ 11      This appeal followed.

¶ 12                                       II. ANALYSIS
¶ 13       Defendant appeals the denial of his postconviction petition and alleges he was not
       provided reasonable assistance of counsel because his counsel failed to provide sufficient
       information to the trial court in support of his section 116-3 request for additional DNA
       testing. The State argues that defendant was not denied the reasonable assistance of counsel
       because he has no right to counsel in connection with his motion for forensic testing pursuant
       to section 116-3. Defendant argues in response that because his section 116-3 request was
       included in his amended postconviction petition, and not just in a section 116-3 motion, he
       was entitled to the reasonable assistance of counsel.

¶ 14                             A. Love and the Right to Counsel
¶ 15        “[A] defendant may not complain of inadequate assistance of counsel if she or he had no
       right to counsel.” People v. Love, 312 Ill. App. 3d 424, 426, 727 N.E.2d 680, 682 (2000). A
       defendant has a right to counsel where statute or the constitution provide for it. Love, 312 Ill.
       App. 3d at 426, 727 N.E.2d at 683 (citing People v. Flores, 153 Ill. 2d 264, 276, 606 N.E.2d
       1078, 1084 (1992)). A defendant’s constitutional right to counsel only applies during trial
       and during a defendant’s first appeal of right. Love, 312 Ill. App. 3d at 426, 727 N.E.2d at
       683 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). Defendant does not have a
       constitutional right to counsel because his section 116-3 request was made after the
       resolution of his trial and after his direct appeal. Thus, any right to counsel defendant has
       must be provided by statute.
¶ 16        In Love, the defendant urged the court to find that a section 116-3 movant is entitled to
       the same reasonable assistance of counsel as a postconviction petitioner. See Love, 312 Ill.
       App. 3d at 427, 727 N.E.2d at 683. The Love court held it had no power to do so. Love, 312
       Ill. App. 3d at 427, 727 N.E.2d at 683. The Second District there found, unlike a
       postconviction petitioner who is afforded the assistance of counsel by the Post-Conviction
       Hearing Act’s specific language (see 725 ILCS 5/122-4 (West 2006)), a section 116-3
       movant is not entitled to counsel because the plain language of section 116-3 does not
       provide a right to counsel. Love, 312 Ill. App. 3d at 427, 727 N.E.2d at 683. Thus, the
       defendant could not allege he was provided inadequate assistance of counsel on his section
       116-3 motion where he had no right to counsel. Love, 312 Ill. App. 3d at 427, 727 N.E.2d
       at 683.
¶ 17        We find Love inapposite as the facts are distinguishable from defendant’s case. In Love,
       the defendant was convicted in 1988 and directly appealed his conviction. Love, 312 Ill. App.


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       3d at 425, 727 N.E.2d at 681. The defendant then filed a postconviction petition, which was
       denied by the trial court and affirmed in the appellate court in 1997. Love, 312 Ill. App. 3d
       at 425, 727 N.E.2d at 682. Finally, in 1998, the defendant filed a pro se section 116-3 motion
       requesting new DNA testing and a motion for the appointment of counsel. Love, 312 Ill. App.
       3d at 425, 727 N.E.2d at 682. The court appointed counsel and counsel filed an amended
       section 116-3 motion “that basically restated the allegations in [the] defendant’s original
       motion.” Love, 312 Ill. App. 3d at 425, 727 N.E.2d at 682. Counsel represented the defendant
       on the matter, but ultimately conceded at the hearing that the blood the defendant wished to
       be tested no longer existed, and the trial court denied the motion on that basis. Love, 312 Ill.
       App. 3d at 426, 727 N.E.2d at 682. The defendant appealed the denial of his petition,
       alleging counsel was ineffective for conceding the blood was no longer available. Love, 312
       Ill. App. 3d at 426, 727 N.E.2d at 682.
¶ 18        Here, defendant filed a pro se postconviction petition and a separate pro se section 116-3
       motion for new DNA testing on the same day. After defendant was appointed counsel to
       represent him on his postconviction petition, defense counsel filed an amended petition.
       Along with the amended petition, defense counsel filed a Rule 651(c) certificate (Ill. S. Ct.
       R. 651(c) (eff. Apr. 26, 2012)) stating he consulted with defendant on his petition and “made
       amendments to *** pleadings as necessary for adequate presentation of his contentions.”
       Counsel included defendant’s section 116-3 request in the amended postconviction petition
       and did not file an amended section 116-3 motion. However, at the proceedings on the
       postconviction petition, counsel did not present evidence or make any arguments concerning
       the existence of new DNA testing. Thus, the trial court denied defendant’s section 116-3
       request in its May 29, 2009, order.
¶ 19        Applying Love would be unjust in light of the unique circumstances of this case. Neither
       Love, nor any other decision we can find, addresses the situation where a defendant files a
       pro se postconviction petition and pro se section 116-3 motion, is then appointed counsel on
       the postconviction petition, and counsel amends the postconviction petition to include the
       defendant’s section 116-3 request but takes no further action to present evidence or make
       arguments during postconviction proceedings.
¶ 20        We recognize that, according to Love, defendant would not be entitled to counsel on an
       independent section 116-3 motion. However, after counsel was appointed, he made the
       decision to incorporate defendant’s section 116-3 claim into the amended postconviction
       petition. At that point, defendant was no longer in a position to proceed pro se on his
       separate section 116-3 motion. Had he made such a request, he may have risked waiving his
       right to counsel on the postconviction petition. See People v. French, 210 Ill. App. 3d 681,
       690, 569 N.E.2d 934, 940 (1991) (where a defendant expresses a desire to represent himself
       on a postconviction petition, he thereby waives his right to appointed counsel). Thus, once
       the section 116-3 request became a part of the postconviction petition, defendant was entitled
       to the same level of assistance he received on his other postconviction claims.
¶ 21        The State further argues that even if defendant’s section 116-3 claim was included in his
       postconviction petition, it was not the proper subject of such a petition, and thus, defendant
       was not entitled to counsel on the issue. We decline to decide whether such claims are an
       appropriate subject of a postconviction petition. However, although not cited by either party,

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       our research has revealed that when a motion should not have been treated as a
       postconviction petition, but the trial court elects to proceed as if it were, it is incumbent upon
       appointed counsel to comply with his duties under the Post-Conviction Hearing Act and Rule
       651. People v. Williams, 23 Ill. App. 3d 988, 320 N.E.2d 411 (1974) (abstract of op.).
       Defense counsel, the State, and the court all proceeded with defendant’s section 116-3
       motion as part of the amended postconviction petition. Therefore, counsel should have
       complied with his duties under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8
       (West 2006)) and Rule 651.

¶ 22                    B. Rule 651(c) and Reasonable Assistance of Counsel
¶ 23        A petitioner is entitled to the reasonable assistance of counsel in postconviction
       proceedings. People v. Jennings, 345 Ill. App. 3d 265, 271, 802 N.E.2d 867, 872 (2003).
       Rule 651(c) requires that counsel (1) consult with the defendant, (2) examine the record, and
       (3) make any necessary amendments to the petitioner’s pro se petition for an adequate
       presentation of petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. Apr. 26, 2012). Our
       supreme court and appellate courts have held that “failure to make a routine amendment to
       a postconviction petition that would overcome a procedural bar constitutes unreasonable
       assistance in violation of Rule 651(c).” People v. Broughton, 344 Ill. App. 3d 232, 241, 799
       N.E.2d 952, 960 (2003); see also People v. Turner, 187 Ill. 2d 406, 412-13, 719 N.E.2d 725,
       729 (1999) (holding that postconviction counsel did not provide reasonable assistance where
       his failure to amend the petition to include a claim of ineffective assistance of appellate
       counsel for failure to raise petitioner’s claims on direct appeal caused petitioner’s claims to
       be barred by waiver). As it is unreasonable assistance to fail to make an amendment that
       would overcome a procedural bar, we conclude it is equally unreasonable for postconviction
       counsel to amend a pro se petition in a way that creates a procedural bar for a defendant and
       fail to follow through with the presentation of evidence and argument thereon. While this
       argument was not advanced by either party, we find it is necessary to consider such an
       argument in the interests of reaching a just conclusion.
¶ 24        Here, postconviction counsel amended defendant’s pro se petition to include a section
       116-3 request but failed to present any evidence or argument in support of that request. In
       doing so, counsel has effectively created a procedural bar, res judicata, to defendant’s section
       116-3 motion.
¶ 25        Our appellate courts have concluded that the statutory language of section 116-3 does not
       limit the number of motions a defendant may bring. See People v. Bailey, 386 Ill. App. 3d
       68, 72, 897 N.E.2d 378, 382 (2008). Although successive motions are not impermissible, res
       judicata will bar a successive motion if the exact same issue is raised in both motions.
       People v. Barker, 403 Ill. App. 3d 515, 522-23, 932 N.E.2d 1207, 1214 (2010). Because
       defense counsel included the section 116-3 request in the amended postconviction petition,
       the trial court ruled on the merits of the issue, even though counsel seemingly abandoned the
       issue during the proceedings. (It appears from the record that counsel mistakenly believed
       the State had acquiesced as to this issue at the postconviction hearing. However, as discussed
       earlier, the State never made a motion for a directed verdict on subsection (o), nor agreed


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       defendant had presented prima facie evidence on the issue.) Any successive motion
       defendant files will presumably contain the exact same issue raised in his first motion, as it
       was never truly litigated. Were we to affirm the denial of defendant’s amended
       postconviction petition, defendant may not be able to prevail on a successive motion because
       he would be barred by res judicata. Thus, counsel’s affirmative decision to include the
       section 116-3 request in the amended petition has created a procedural bar for defendant to
       bring a successive section 116-3 motion. We conclude such action effectively rendered
       counsel’s assistance unreasonable as to this issue.
¶ 26       Accordingly, we reverse the trial court’s denial of defendant’s amended postconviction
       petition insofar as the section 116-3 request for new DNA testing. Defendant asks this court
       to order the trial court to allow new DNA testing to be performed. However, before the trial
       court allows new testing to be performed, defendant must show he has met the requirements
       of section 116-3 and that he has made a prima facie case that identity was at issue at trial.
       See People v. Gibson, 357 Ill. App. 3d 480, 484-85, 828 N.E.2d 881, 885 (2005); 725 ILCS
       5/116-3 (West 2010). Because defendant was not given such an opportunity due to counsel’s
       unreasonable assistance, we remand to the trial court for further proceedings and a
       determination of whether defendant has satisfied the requirements of section 116-3.

¶ 27                                    III. CONCLUSION
¶ 28       For the reasons stated above, we reverse the trial court’s denial of defendant’s amended
       postconviction petition insofar as the section 116-3 request and remand with directions. We
       affirm the trial court’s judgment in all other respects.

¶ 29      Affirmed in part and reversed in part; cause remanded with directions.




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