                                                                      FIRST DIVISION
                                                                      NOVEMBER 13, 2007




No. 1-05-0515

THE PEOPLE OF THE STATE OF ILLINOIS,                  )     Appeal from the
                                                      )     Circuit Court of
                       Plaintiff-Appellee,            )     Cook County
                                                      )
       v.                                             )     Nos. 82 C 12459, 82 C 12460
                                                      )
GREGORY MOORE,                                )       Honorable
                                                      )     Paul P. Biebel,
                       Defendant-Appellant.           )     Judge Presiding.


       JUSTICE ROBERT E. GORDON delivered the modified opinion of the court:

       Defendant Gregory Moore appealed from an order of the circuit court of Cook County

entered on February 24, 2005, denying his pro se motion for deoxyribonucleic acid (DNA) testing

pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3

(West 2004)). On appeal, defendant contended (1) that the trial court erred by denying his

motion for DNA testing because the identity-at-issue requirement of section 116-3 was

unconstitutional as applied to him, (2) that his guilty plea was involuntary because it was based on

an “unfulfilled promise” of leniency, and (3) that the trial court violated defendant’s due process

rights by ruling on issues beyond the understood scope of the hearing which resulted in the

February 24, 2005, dismissal. This court affirmed the denial of his pro se motion based on

defendant’s failure to fulfill the chain of custody requirement of subsection (b)(2) of section 116-

3. This court also went on to address defendant’s constitutional challenge, and found the identity
No. 1-05-0515


at issue requirement of section 116-3, not unconstitutional. People v. Moore, 373 Ill. App. 3d

367 (2007).

       The Illinois Supreme Court denied defendant’s petition for leave to appeal, but ordered

this court to vacate that part of the judgment addressing the constitutionality of subsection (b)(1)

of section 116-3, in light of the Supreme Court’s pronouncements in In re E.H., 224 Ill. 2d 172

(2006), and Mulay v. Mulay, 225 Ill. 2d 601 (2007), that appeals must be determined on

statutory, nonconstitutional grounds whenever possible. People v. Moore, ___ Ill. 2d ___ , 873

N.E.2d 941 (2007). We hereby vacate that portion of this court’s original opinion.

                                         BACKGROUND

       According to the memorandum opinion and order of the trial court, the background to this

case is as follows: At some time between midnight and 1 a.m., on October 27, 1982, T.R. was

returning to her apartment in the Lakeview neighborhood of Chicago. The defendant grabbed

her, put a gun to her head, and forced her into her apartment. While there, defendant repeatedly

raped T.R. and then compelled her to perform oral sex while defendant held a handgun directed at

her head.

       On November 23, 1982, defendant entered the apartment of L.M. in the Lincoln Park

neighborhood of Chicago around 6:55 p.m. The defendant pointed a gun at her head, demanded

money and jewelry. After L.M. gave him the items he demanded, defendant bound, gagged, and

raped her.

       On December 10, 1982, at around 8 p.m., K.D. was returning to her apartment located in

the Wrigleyville neighborhood in Chicago. The defendant exited a vehicle driven by Virgie

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Peterson and approached K.D. Defendant held a silver handgun to K.D.’s head and demanded

her money. He took approximately $60 and was driven away by Peterson in the same vehicle.

Only four hours later, defendant and Peterson robbed R.K. in the Lincoln Park neighborhood in

Chicago with the aid of the same silver handgun. R.K. was walking in a gangway of her building

when defendant approached her from behind, put his arm around her shoulders, led her to a

lower-level apartment and pushed her against a wall. Defendant put the silver gun to her head,

told her to stay quiet and demanded her money and wedding ring. When R.K. refused to

surrender her wedding ring, a struggle ensued during which defendant tried to remove the ring.

R.K. screamed and defendant threatened to shoot her. He took her purse and fled.

        Defendant was subsequently arrested with Peterson on the south side of Chicago and

charged with these crimes. He admitted his guilt to police officers after being found in possession

of R.K.’s purse. Defendant was convicted by a jury for the armed robbery of R.K. and sentenced

to the Illinois Department of Corrections for 30 years on February 27, 1984. He did not testify at

the trial but admitted his guilt at sentencing.

        Defendant pleaded guilty to the armed robbery of K.D., the armed robbery and rape of

L.M., and the rape of T.R. Pursuant to defendant’s guilty plea on these charges and defendant’s

previous conviction for the armed robbery of R.K., defendant was sentenced to 20 years for the

armed robbery and rape of L.M. concurrent with 20 years for the rape of T.R. and 20 years for

the armed robbery of K.D. in the Illinois Department of Corrections on July 24, 1984, to run

consecutively with 30 years previously given for a total of 50 years in the Illinois Department of

Corrections.

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       On December 23, 2002, the defendant filed a pro se request for DNA testing on the rape

cases pursuant to section 116-3 (725 ILCS 5/116-3 (West 2004)). The trial court appointed the

Cook County public defender to represent the indigent defendant on October 2, 2003, 18 years

after his conviction. That same day, defendant filed an amended motion requesting DNA testing

and challenged the voluntariness of his guilty plea, arguing that it was “based upon an unfulfilled

promise of leniency, and exoneration of the rape charges on a later date.”

       The trial court heard oral argument from both defense counsel and the State relating to the

motion for DNA testing on December 22, 2004. On February 24, 2005, the trial court denied

defendant’s motion and issued a 12-page memorandum opinion and order setting forth the

reasons for the denial. This appeal followed.

                                            ANALYSIS

       On appeal, defendant first contends that the trial court erred by denying his motion for

DNA testing because the identity-at-issue requirement of section 116-3 is unconstitutional as

applied to him. Specifically, defendant argues that subsection (b)(1) of section 116-3 is

unconstitutional because it bars defendant and all those similarly situated who pleaded guilty to

crimes before the development of DNA technology from filing motions for DNA testing.

       A trial court’s ruling on a motion brought pursuant to section 116-3 of the Code of

Criminal Procedure is reviewed de novo. People v. Hockenberry, 316 Ill. App. 3d 752, 755

(2000). Review in such cases is de novo because the trial court’s decision regarding a section

116-3 motion is not based upon its assessment of the credibility of the witnesses but on its review

of the pleadings and the trial transcripts. Hockenberry, 316 Ill. App. 3d at 755.

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       “Section 116-3 of the Code of Criminal Procedure of 1963 [citation] became effective

January 1, 1998. Its purpose is to provide an avenue for convicted defendants who maintained

their innocence to test *** genetic material capable of providing new and dramatic evidence

materially relevant to the question of the defendant’s actual innocence.” People v. Henderson,

343 Ill. App. 3d 1108, 1114 (2003). Section 116-3 provides:

                “§ 116-3. Motion for fingerprint or forensic testing not available at trial

       regarding actual innocence.

                (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 fingerprint or

       forensic DNA testing, including comparison analysis of genetic marker groupings

       of the evidence collected by criminal justice agencies pursuant to the alleged

       offense, to those of the defendant, to those of other forensic evidence, and to those

       maintained under subsection (f) of Section 5-4-3 of the Unified Code of

       Corrections [730 ILCS 5/5-4-3], 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 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; and



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                        (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.

                (c) The trial court shall allow the testing under reasonable conditions

       designed to protect the State’s interests in the integrity of the evidence and the

       testing process upon a determination that:

                        (1) the result of the testing has the scientific potential to

                produce new, noncumulative evidence materially relevant to the

                defendant’s assertion of actual innocence even though the results

                may not completely exonerate the defendant;

                        (2) the testing requested employs a scientific method

                generally accepted within the relevant scientific community.” 725

                ILCS 5/116-3 (West 2004).

       Defendant urges us on appeal, as he urged the trial court, to find the identity-at-issue

requirement recited in subsection (b)(1) of section 116-3 unconstitutional. However, it is well

established that cases should never be decided on constitutional grounds if alternate means exist,

reaching constitutional issues only as a last resort. People v. Lee, 214 Ill. 2d 476, 482 (2005)

(“courts should not compromise the stability of the legal system by declaring legislation

unconstitutional when a particular case does not require it”).

       As the trial court correctly noted, this case can be decided without reaching the

constitutional issue. The trial court correctly held that defendant was not entitled to DNA testing

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because he failed to meet the requirement of subsection (b)(2) of section 116-3. Subsection

(b)(2) requires the defendant to establish a sufficient chain of custody to offer proof that DNA

was collected from the crime scene, has not been altered, and is in the possession of the proper

authorities. People v. Johnson, 205 Ill. 2d 381, 394 (2002). In examining the chain of custody

requirement, courts look to proof of delivery of the evidence, presence and safekeeping. People

v. Gibson, 287 Ill. App. 3d 878, 882 (1997).

       Defendant failed to meet the chain of custody requirement. He alleges in his section 116-3

motion that “to the best of [his] belief, the material collected is in the possession of the proper

authorities and has not been tampered with, replaced, or altered in any material respect.” As the

trial judge correctly noted, these conclusory statements fail to satisfy the chain of custody

prerequisite and essentially mirror the allegations made by the defendant in People v. Jones, 334

Ill. App. 3d 61, 64-66 (2002). Here, as in Jones, defendant has made absolutely no showing as to

where the items are now, more than 20 years after his arrest, nor done anything to establish a

chain of custody from the Chicago police department. Defendant does not allege with any

specificity if the proper authorities took DNA when the DNA was received or mention anything

pertaining to the current condition of the DNA. Therefore, the trial court properly denied

defendant’s section 116-3 motion for DNA testing because the defendant failed to meet the

requirements of subsection (b)(2) of the statute.

       Defendant then argues that his guilty plea was involuntary because it was based on an

“unfulfilled promise” of leniency. Defendant suggests he was promised that he would receive

three 20-year prison terms to run concurrently with the 30-year prison term he received for the

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armed robbery of R.K. in exchange for his guilty plea to the rapes. Allegedly, defendant later

learned counsel had misinformed him and he was sentenced to a consecutive term of

imprisonment causing defendant to receive a total prison term of 50 years. We are not persuaded

by defendant’s argument.

       As the trial court noted, the defendant failed to object to the plea agreement in open court

when the sentencing judge sentenced him to three 20-year concurrent prison terms to run

consecutively with the 30-year prison term he received for the armed robbery of R.K. causing

defendant to serve a total prison term of 50 years although he was expecting a total term of 30

years according to the alleged promise of leniency. The defendant also waited more than 20 years

to challenge the voluntariness of his plea. We therefore find that the defendant’s guilty plea was

knowingly and voluntarily made and defendant’s challenge to the plea disingenuous.

       Defendant’s final argument is that the trial court violated defendant’s due process rights by

ruling on issues beyond the understood scope of the hearing, which resulted in the February 24,

2005, dismissal. Defendant claims that the oral arguments held on December 22, 2004, were held

solely to determine the constitutionality of subsection (b)(1) of section 116-3. Specifically,

defendant claims that it was error for the trial court to reach the issue regarding the sufficiency of

defendant’s section 116-3 motion for DNA testing because defendant was not prepared to address

that issue at oral argument.

       The record does not indicate that the December 22, 2004, oral argument was set only for

arguments regarding the constitutionality of subsection (b)(1) of section 116-3. If there is



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evidence indicating that the hearing was restricted to that legal issue, defendant has failed to

provide it in the record of this case.

        “The appellant has the burden of providing a sufficiently complete record on appeal so that

the reviewing court is fully informed regarding the issues to be resolved; in the absence of a

complete record on appeal, it is presumed that the trial court’s judgment conforms to the law and

has a sufficient factual basis.” People v. Odumuyiwa, 188 Ill. App. 3d 40, 45-46 (1989). The

only evidence of the restriction on the hearing was defense counsel’s assertion, contained in the

trial transcript, that the hearing was restricted to the issue of the constitutionality of subsection

(b)(1) of section 116-3. However, also in the trial transcript is defense counsel’s argument

regarding the issue of actual innocence and the availability of DNA technology at the time of

defendant’s guilty plea. Moreover, defense counsel had more than a year to conduct discovery

and seek out DNA, if it existed in this case. As noted, the public defender was appointed to

defendant’s case on October 2, 2003, and oral argument on defendant’s section 116-3 motion was

held on December 22, 2004. It does not conclusively appear from the transcript that the hearing

on December 22, 2004, was restricted solely to the constitutional question, nor does it appear that

defendant did not have ample opportunity to seek discovery to satisfy the chain of custody

element of section 116-3. Accordingly, we find defendant’s argument unpersuasive.

        Defendant has made no argument in his brief that the trial court erred when it ruled that

defendant’s section 116-3 motion was insufficient because defendant failed to allege any new

evidence demonstrating defendant’s actual innocence. As a consequence, the issue of whether the



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trial court erred in ruling that the defendant’s motion was insufficient is waived. 210 Ill. 2d R.

341(h)(7).

                                          CONCLUSION

       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

This court finds that defendant’s motion for DNA testing was properly denied by the trial court

because defendant failed to satisfy the chain of custody requirement of section 116-3. We find

that defendant’s guilty plea was not involuntary. We also find that the trial court did not err in

addressing the sufficiency of the defendant’s motion because nothing in the record indicates that

the scope of the hearing was restricted to argument regarding the constitutionality of subsection

(b)(1) of section 116-3.

       Affirmed.

       CAHILL, P.J., and GARCIA, J., concur.




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