Filed 11/21/08            NO. 4-08-0178

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
GREGORY L. BOATMAN,                    )    No. 97CF1076
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    John R. Kennedy,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          Defendant, Gregory L. Boatman, appeals the trial

court's dismissal of his fourth motion for forensic testing filed

pursuant to section 116-3 of Code of Criminal Procedure of 1963

(Code) (725 ILCS 5/116-3 (West Supp. 2007)).   We reverse.

          On December 18, 1997, a jury found defendant, Gregory

L. Boatman, guilty of attempt (first degree murder of a peace

officer) (720 ILCS 5/8-4(a) (West 1996)), two counts of aggra-

vated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West

1996)), and unlawful possession of a stolen vehicle (625 ILCS

5/4-103(a)(1) (West 1996)).    On January 30, 1998, the trial court

sentenced him to two consecutive 60-year prison sentences for the

aggravated-criminal-sexual-assault convictions to be served

concurrently with a 14-year prison sentence for unlawful posses-

sion of a stolen vehicle and 160 years for attempt.   On direct

appeal, defendant's attempt sentence was reduced to 60 years.
People v. Boatman, 312 Ill. App. 3d 340, 345, 726 N.E.2d 1178,

1182 (2000).

          Initially, we note, this is the seventh time defen-

dant's case has been before this court on appeal.   The record

shows he filed a direct appeal, appeals from denials of two

postconviction petitions, an appeal from the denial of a motion

to reduce his sentence, appeals from the denials of two previous

motions for forensic testing, and this current appeal.

          At defendant's trial, B.M. testified in connection with

the aggravated-criminal-sexual-assault counts.   She stated she

entered a car being driven by a man she identified as defendant.

She stated defendant sexually assaulted her while wearing a

condom.   After the assault, she and defendant cleaned themselves

off with paper towels.   B.M. reported the attack and was taken to

the hospital where she was examined and a "rape kit analysis" was

performed.

          On October 25, 1999, defendant filed a pro se motion

for forensic testing not available at trial regarding actual

innocence pursuant to section 116-3 of the Code (725 ILCS 5/116-3

(West 1998)).   He requested deoxyribonucleic acid (DNA) testing

on paper towels that were taken into evidence and hair-sample

analysis on exemplars taken from himself and B.M.   On November

16, 1999, the State filed a motion to dismiss defendant's motion,

arguing it was deficient on its face because it failed to contain


                               - 2 -
the allegation that the technology for the requested testing was

not available at the time of trial.     On February 11, 2000, the

trial court granted the State's motion, stating defendant was

convicted in December 1997, and "the technology for the testing

contemplated by section 116-3 was available at the time of

trial."

          On June 9, 2001, defendant filed a second pro se motion

for forensic testing pursuant to section 116-3.     He asked for DNA

testing on his clothing and hair-sample analysis on exemplars

taken from himself and B.M.    On June 13, 2001, the trial court

denied defendant's motion, finding it contained the same allega-

tions as his first motion for forensic testing and its order

denying the first motion was a final order.     Defendant appealed

the court's decision.    On appeal, the office of the State Appel-

late Defender (OSAD) moved to withdraw as appellate counsel.

This court granted OSAD's motion and affirmed the lower court's

judgment, stating as follows:

               "DNA testing and hair-sample analysis

          were available in 1997 when defendant was

          tried, and defendant had the opportunity to

          request those.    He did not allege in his

          motion that a new type of testing was now

          available.    Because defendant failed to al-

          lege that the testing technology he now re-


                                - 3 -
            quests was unavailable at the time of trial,

            the dismissal of defendant's motion was

            proper. [Citation.]"     People v. Boatman, No.

            4-01-0616, slip order at 4 (October 23, 2002)

            (unpublished order under Supreme Court Rule

            23).

            On June 28, 2004, defendant filed a third pro se motion

for forensic testing pursuant to section 116-3.      He requested

testing on all of his and B.M.'s clothing and "also any certain

hair sample[,] blood sample[,] whatevers [sic] at the [S]tate[']s

request."    On June 30, 2004, the State filed a motion to dismiss

defendant's motion, noting his previous two motions and asserting

DNA testing was readily available at the time of his trial.      On

July 20, 2004, the trial court denied defendant's motion.      It

noted he failed to allege the requested testing was unavailable

at the time of his trial.    Defendant appealed the court's deci-

sion.   On appeal, OSAD again moved to withdraw as appellate

counsel.    This court allowed OSAD's motion to withdraw and

affirmed the lower court's judgment, stating "[d]efendant's third

motion for forensic testing was facially insufficient, as were

his first two."    People v. Boatman, No. 4-04-0755, slip order at

6 (February 21, 2006) (unpublished order under Supreme Court Rule

23).

            On December 13, 2006, defendant filed his fourth pro se


                                   - 4 -
motion for forensic testing pursuant to section 116-3.   He

requested DNA "testing type (STR-PCR)" of his and B.M's clothing

and the "rape kit," all of which he alleged were not subjected to

forensic testing at the time of his trial.   On January 12, 2007,

the State filed a motion to dismiss defendant's motion, arguing

he failed to allege the requested testing was unavailable at his

trial and his motion is barred by the doctrine of res judicata.

On January 28, 2008, the trial court determined defendant failed

to state a claim for relief under section 116-3 because he did

not allege the requested testing was unavailable at the time of

his trial.   It granted the State's motion to dismiss.

           This appeal followed.

           On appeal, defendant argues the trial court erred by

denying his fourth motion for forensic testing without first

determining whether the requested testing technology was avail-

able at the time of his trial.

           Section 116-3 of the Code (725 ILCS 5/116-3 (West Supp.

2007)) permits a defendant to move for forensic testing of

evidence "secured in relation to the trial which resulted in his

or her conviction."   The defendant must present a prima facie

case that identity was an issue at his or her trial and the

evidence to be tested was subjected to a sufficient chain of

custody.   725 ILCS 5/116-3(b)(1), (b)(2) (West Supp. 2007).   The

trial court should grant a defendant's motion when the results of


                                 - 5 -
the testing would have "the scientific potential to produce new,

noncumulative evidence materially relevant to the defendant's

assertion of actual innocence" even if they may not completely

exonerate the defendant and "the testing requested employs a

scientific method generally accepted within the relevant scien-

tific community."   725 ILCS 5/116-3(c)(1), (c)(2) (West Supp.

2007).   The court's denial of a section 116-3 motion for forensic

testing is subject to de novo review.    People v. O'Connell, 227

Ill. 2d 31, 35, 879 N.E.2d 315, 317-18 (2007).

           In between the time defendant filed his fourth motion

for forensic testing in December 2006, and the time the trial

court decided his motion in January 2008, section 116-3 was

amended.   When defendant filed his motion, section 116-3(a)

provided as follows:

                "A defendant may make a motion before

           the trial court that entered the judgment of

           conviction in his or her case for the perfor-

           mance of *** forensic DNA testing *** on

           evidence that was secured in relation to the

           trial which resulted in his or her convic-

           tion, but which was not subject to the test-

           ing which is now requested because the tech-

           nology for the testing was not available at

           the time of trial."   (Emphases added.) 725


                                 - 6 -
          ILCS 5/116-3(a) (West 2006).

Section 116-3 was amended in Public Act 95-688 (Pub. Act 95-688,

eff. October 23, 2007 (amending 725 ILCS 5/116-3 (West 2006))).

It now provides as follows:

               "A defendant may make a motion before

          the trial court that entered the judgment of

          conviction in his or her case for the perfor-

          mance of *** forensic DNA testing *** on

          evidence that was secured in relation to the

          trial which resulted in his or her convic-

          tion, and:

                    (1) was not subject to the

               testing which is now requested at

               the time of trial; or

                    (2) although previously sub-

               jected 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."   (Emphases

               added.) 725 ILCS 5/116-3(a) (West

               Supp. 2007).

          The amended version of section 116-3(a) was in effect


                              - 7 -
at the time the trial court denied defendant's motion.     "In the

absence of legislative intent to the contrary, a court is to

apply the law in effect at the time of its decision, unless to do

so results in manifest injustice."      People v. Hardin, 203 Ill.

App. 3d 374, 376, 561 N.E.2d 326, 327 (1990).

            Here, defendant sought forensic testing of his and

B.M.'s clothing and the "rape kit."     He alleged none of those

items was previously subjected to forensic testing at the time of

his trial.    Following the October 2007 amendment to section 116-

3, it was sufficient for defendant to request forensic testing on

evidence secured in relation to his trial and allege only that

the evidence was not previously subject to the testing he was now

requesting.    It was not necessary for him to allege the testing

was unavailable at the time of his trial unless he was seeking to

subject the evidence to additional testing.     Defendant's fourth

motion for forensic testing was not insufficient for the reasons

determined by the trial court or alleged by the State.

            Additionally, given the intervening change in section

116-3, defendant's motion for forensic testing is not barred by

the doctrine of res judicata.

            For the reasons stated, we reverse the trial court's

judgment.

            Reversed.

            MYERSCOUGH and COOK, JJ., concur.


                                - 8 -
- 9 -
