                                                                                        FILED
                                                                                    March 19, 2019
                                     2019 IL App (4th) 180160                        Carla Bender
                                                                                 4th District Appellate
                                           NO. 4-18-0160                               Court, IL

                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                       FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                         )   Appeal from the
            Plaintiff-Appellee,                               )   Circuit Court of
            v.                                                )   Macon County
 WILLIE HARPER,                                               )   No. 00CF257
            Defendant-Appellant.                              )
                                                              )   Honorable
                                                              )   Jeffrey S. Geisler,
                                                              )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Knecht and Cavanagh concurred in the judgment and opinion.

                                             OPINION
¶1             In August 2016, defendant, Willie Harper, pro se filed a motion for

deoxyribonucleic acid (DNA) testing pursuant to section 116-3 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2014)). At the time of his filing, defendant

was serving a 60-year sentence for the first degree murder of his wife (720 ILCS 5/9-1(a)(1)

(West 2000)). In March 2018, the trial court denied defendant’s motion.

¶2             Defendant appeals, arguing that the trial court erred in denying his motion for

DNA testing because he stated a prima facie case that (1) identity was an issue at trial 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. We disagree and

affirm.

¶3                                      I. BACKGROUND
¶4             In January 2002, a jury convicted defendant of first degree murder (id.). The trial

court later sentenced him to 60 years in prison. Defendant appealed, and this court affirmed his

conviction and sentence. People v. Harper, No. 4-02-0295 (2004) (unpublished order under

Illinois Supreme Court Rule 23).

¶5             In August 2005, defendant pro se filed a petition for postconviction relief

pursuant to section 122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2004)),

alleging ineffective assistance of trial counsel. In February 2006, defendant’s appointed

postconviction counsel filed an amended petition for postconviction relief, which the trial court

dismissed. Defendant appealed, and this court affirmed. People v. Harper, No. 4-07-0235 (2008)

(unpublished order under Illinois Supreme Court Rule 23).

¶6             In January 2009, defendant pro se filed a motion for leave to file a successive

petition for postconviction relief, which the trial court denied. On appeal, this court affirmed the

trial court’s judgment and granted appointed counsel’s motion to withdraw. People v. Harper,

No. 4-09-0199 (2010) (unpublished order under Illinois Supreme Court Rule 23).

¶7             In September 2010, and while his appeal in case No. 4-09-0199 was pending,

defendant filed another motion for leave to file a successive petition for postconviction relief.

The trial court again denied him leave to file a successive petition.

¶8             In August 2016, defendant filed a third successive petition for postconviction

relief, asserting for the first time a claim of actual innocence. The trial court again denied

defendant leave to file a successive petition.

¶9             Also in August 2016, defendant filed a motion for DNA testing pursuant to

section 116-3 of the Code (725 ILCS 5/116-3 (West 2014)), in which he claimed he “maintained

his innocence” throughout the case and that identity was a “critical issue” at trial. Specifically,



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defendant requested DNA testing of blood samples and other evidence collected from the crime

scene that had not previously been tested. The State filed a motion to dismiss, which the trial

court granted. In granting the State’s motion to dismiss, the trial court found that “identity was

not an issue that was raised at the trial.”

¶ 10            This appeal followed.

¶ 11                                          II. ANALYSIS

¶ 12            Defendant appeals, arguing that the trial court erred in dismissing his motion for

DNA testing because he satisfied the requirements set forth in section 116-3(b) of the Code (id.

§ 116-3(b)). The State responds that defendant failed to present a prima facie case under section

116-3 because (1) identity was never an issue at trial and (2) he has not shown 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.” See id. The State further

requests this court to (1) remind the trial court of its authority to collect funds from defendant’s

commissary account to pay for the costs of this litigation, (2) order defendant to show cause why

sanctions should not be entered against him under Illinois Supreme Court Rule 375(b) (eff. Feb.

1, 1994), and (3) direct the clerk of this court to disregard any new appeals submitted by

defendant. We reject the defendant’s argument and agree with the State’s requests.

¶ 13                                    A. Standard of Review

¶ 14            Section 116-3 of the Code allows a criminal defendant to request additional

forensic testing of evidence that was secured in relation to the trial that resulted in his or her

conviction by filing a written motion in the trial court that entered the judgment of conviction in

his or her case. 725 ILCS 5/116-3(a) (West 2014). The court should grant the motion if the

defendant presents a prima facie case that “(1) identity was the issue in the trial or guilty plea



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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.” Id. § 116-3(b). The supreme court has interpreted the first

prong to mean the defendant must show identity was the “central issue at trial.” (Emphasis

added.) People v. Johnson, 205 Ill. 2d 381, 393, 793 N.E.2d 591, 599 (2002); see also People v.

English, 2013 IL App (4th) 120044, ¶ 15, 987 N.E.2d 1058. The purpose of section 116-3 is “to

provide an avenue for convicted defendants who maintained their innocence to test available

genetic material capable of producing new and dramatic evidence materially relevant to the

question of innocence.” People v. Urioste, 316 Ill. App. 3d 307, 310, 736 N.E.2d 706, 710

(2000). We review de novo a trial court’s denial of a motion for forensic testing under section

116-3. Id.

¶ 15                         B. Defendant’s Motion for DNA Testing

¶ 16           Defendant fails to demonstrate that identity was an issue in this case at all, let

alone a “central issue at trial.” Defendant testified in his own defense at trial and did not deny

killing his wife. Nor did defendant present any evidence at trial that someone else may have been

responsible for his wife’s death. Instead, his entire defense relied on the theories of voluntary

intoxication, provocation, and self-defense. Moreover, defendant has invoked the phrase “actual

innocence” only once in the litany of postconviction petitions and assorted pleadings he has filed

with the trial court since his conviction in 2002. In none of those petitions and pleadings did

defendant actually deny killing his wife. Accordingly, defendant failed to state a prima facie case

for further forensic testing under section 116-3, and the trial court correctly granted the State’s

motion to dismiss. Because of this failure, we need not consider whether the evidence to be

tested was subjected to a sufficient chain of custody.



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¶ 17                        C. Defendant’s Abuse of the Court System

¶ 18           Since defendant’s conviction in 2002, he has filed in the trial court numerous

petitions, motions, and other miscellaneous pleadings—no matter how repetitive or futile—in an

attempt to evade the consequences of killing his wife. Neither the trial court nor this court has

ever found that any of defendant’s claims contained any merit. Defendant’s continuing abuse of

the court system has squandered judicial resources that could have been better spent addressing

claims filed by good-faith litigants. Without some consequence for defendant’s habitual frivolous

filings, we believe his abuse of the trial and appellate courts will continue. Accordingly, this

court has decided to take the following actions.

¶ 19           First, because we conclude that defendant’s motion for DNA testing is frivolous,

we remind the trial court of its statutory authority to collect funds from defendant’s trust fund

account to pay for the costs of this litigation. See 735 ILCS 5/22-105(a) (West 2016) (“If a

prisoner confined in an Illinois Department of Corrections facility files a pleading *** and the

Court makes a specific finding that the pleading *** filed by the prisoner is frivolous, the

prisoner is responsible for the full payment of filing fees and actual court costs.”); see also

People v. Austin, 2014 IL App (4th) 140408, ¶ 25, 23 N.E.3d 615.

¶ 20           Second, as we have done in the past with other “frequent filers,” “we order

defendant to show cause within 30 days why sanctions should not be entered against him

under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) for filing a frivolous appeal. Until

such time as (1) defendant responds to this order and (2) this court determines what action to

take, we direct the clerk of this court to disregard—and by that we mean to not file—any new

appeals submitted to this court by defendant.” People v. Alexander, 2014 IL App (4th) 130132,

¶ 59, 23 N.E.3d 621.



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¶ 21                                  III. CONCLUSION

¶ 22          For the reasons stated, we affirm the trial court’s judgment and order defendant to

show cause within 30 days as to why sanctions should not be entered pursuant to Rule 375(b).

¶ 23          Affirmed.




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