                                          2017 IL App (3d) 150542

                               Opinion filed October 31, 2017
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2017

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 10th Judicial Circuit,
                                                       )       Tazewell County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-15-0542
            v.                                         )       Circuit No. 10-CF-659
                                                       )
     WILLIAM S. THOMAS,                                )       Honorable
                                                       )       Paul Gilfillan,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices O’Brien and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant, William S. Thomas, appeals from the denial of his motion for forensic testing.

     He argues that his motion set forth each of the elements required for such testing to be granted

     and thus requests this court reverse the Tazewell County circuit court’s judgment. We find that

     any result of the proposed testing would not have the potential to produce evidence that would

     raise a reasonable probability that defendant would have been acquitted had he proceeded to

     trial. We therefore affirm the circuit court’s denial of defendant’s motion.

¶2                                                 FACTS
¶3          Defendant pled guilty on June 24, 2011, to one count of being an armed habitual criminal

     (720 ILCS 5/24-1.7 (West 2010)). As a part of the factual basis for the plea, the State submitted

     certified copies of defendant’s previous convictions for burglary, aggravated battery, and

     unlawful possession of a weapon by a felon.

¶4          The State further declared that Genie Hopkins would testify that she saw defendant with a

     green and orange sawed-off shotgun. That shotgun was later recovered from a vehicle being

     driven by defendant on or about November 26, 2010. In a videotaped interview with police,

     defendant admitted to purchasing and possessing that sawed-off shotgun. Following the factual

     basis, defense counsel responded: “Your honor, that’s a very, very truncated version of the case,

     but yes, we agree that they could present that evidence.” The court accepted defendant’s plea

     and, at a later date, sentenced him to a term of 18 years’ imprisonment.

¶5          Following his plea hearing, defendant filed numerous motions seeking to withdraw the

     plea and to obtain new representation. In one of those motions, defendant alleged that his

     videotaped confession was involuntary because he was under the influence of alcohol and Xanax

     when the statements were made. Defendant attached to one motion an affidavit from Hopkins, in

     which she admitted to perjuring herself.

¶6          On June 28, 2012, just over a year after defendant’s plea hearing, the court held a hearing

     on defendant’s motion to withdraw his guilty plea. At the hearing, Hopkins testified that

     defendant is the father of her child and her boyfriend of six years. Hopkins testified that around

     November 26, 2010, she and defendant had been arguing and defendant was threatening to leave

     her. Hopkins decided to frame defendant for possession of firearms. She first put six Xanax into

     three beers that defendant drank. She then retrieved the sawed-off shotgun from another

     residence and brought it to the home she shared with defendant. When defendant saw Hopkins


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     with the sawed-off shotgun, he tried to wrestle it away from her. In the ensuing scuffle, the

     shotgun struck Hopkins in the face, causing a gash on her forehead. Hopkins then put the gun

     into her Jeep. Hopkins later asked an acquaintance to hit her with a pistol to make it look like

     defendant had battered her. She then reported to the police that defendant had kidnapped their

     son and was in possession of multiple firearms. She recanted her story about the kidnapping prior

     to defendant’s guilty plea. She did not recant the portion of her story relating to the firearms

     because she feared being charged herself.

¶7          Defendant testified that he asked his original defense attorney, Fred Bernardi, to conduct

     DNA testing on the sawed-off shotgun, but Bernardi refused. According to defendant, Bernardi

     also refused to introduce expert testimony regarding the effects of Xanax. Defendant insisted that

     his confession to police was involuntary.

¶8          Bernardi testified that he did not seek DNA testing on the sawed-off shotgun because

     defendant had consistently acknowledged, both in a videotaped interview with police and in jail

     phone recordings, that he possessed the weapon.

¶9          The court denied defendant’s motion to withdraw the plea. The court rejected the notion

     that counsel had been ineffective, observing: “[Defendant] knew he couldn’t prevail at trial, or

     the likelihood was infinitesimal.” The court outright rejected Hopkins’s testimony, stating:

     “[Hopkins] has no credibility at all. The story that she put forth today in front of the Court was

     completely a manufactured story, [and] was an insult to the Court’s intelligence. She clearly lied

     today again. She’s a habitual liar.” The court declared that Bernardi was the only credible

     witness.




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¶ 10          On appeal, this court granted appointed counsel’s motion to withdraw and affirmed the

       court’s denial of defendant’s motion to withdraw the guilty plea. People v. Thomas, No. 3-12-

       0544 (Jan. 1, 2014) (unpublished summary order under Supreme Court Rule 23(c)).

¶ 11          On July 2, 2015, defendant filed a pro se motion for DNA testing, the only subject of the

       present appeal. In the motion, defendant sought DNA testing on the green and orange sawed-off

       shotgun, alleging that he never touched the weapon and that Hopkins and two other individuals

       complicit in the scheme to frame him likely did touch the weapon. Defendant asserted that the

       presence of Hopkins’s DNA or that of her two alleged cohorts would prove that she placed the

       weapon in the Jeep without defendant’s knowledge. The court denied defendant’s motion.

¶ 12                                               ANALYSIS

¶ 13          On appeal, defendant argues that his motion for DNA testing satisfied each of the

       elements required for such testing to be granted. We disagree, finding that no reasonable

       probability exists that any potential test results would have led to an acquittal had defendant

       proceeded to trial instead of pleading guilty.

¶ 14          Section 116-3 of the Code of Criminal Procedure of 1963 (Code) sets forth the

       procedures a criminal defendant must follow in order to seek and obtain postconviction forensic

       testing. 725 ILCS 5/116-3 (West 2014). While the Code requires defendants to satisfy no fewer

       than five distinct elements, only one is relevant to the present appeal:

                              “(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 (i) materially relevant to the defendant’s


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                              assertion of actual innocence when the defendant’s conviction was the

                              result of a trial, even though the results may not completely exonerate the

                              defendant, or (ii) that would raise a reasonable probability that the

                              defendant would have been acquitted if the results of the evidence to be

                              tested had been available prior to the defendant’s guilty plea and the

                              petitioner had proceeded to trial instead of pleading guilty, even though

                              the results may not completely exonerate the defendant[.]” Id.

¶ 15          We note initially that defendant argues the incorrect legal standard on appeal. Throughout

       his briefs, defendant asserts that “[t]he testing requested has the potential to produce non-

       cumulative evidence materially relevant to [defendant’s] claim of actual innocence.” Defendant

       then establishes the definition of “materially relevant” and argues that the potential test results in

       this case would be so relevant. Of course, defendant’s argument references the language of

       subsection (c)(1)(i), which only applies “when the defendant’s conviction was the result of a

       trial.” 725 ILCS 5/116-3(c)(1)(i) (West 2014). Subsection (c)(1)(ii) governs the present situation,

       wherein defendant’s conviction stemmed from a guilty plea. 725 ILCS 5/116-3(c)(1)(ii) (West

       2014). It requires defendant not to show material relevance, but the potential for a “reasonable

       probability” that defendant would have be acquitted had he proceeded to trial. Id.

¶ 16          Effective August 15, 2014, the General Assembly amended section 116-3 to make

       forensic testing available to criminal defendants who had pled guilty. Pub. Act 98-948 (eff. Aug.

       15, 2014) (amending 725 ILCS 5/116-3). Previously, such testing was available only to

       defendants who had proceeded to trial. See 725 ILCS 5/116-3 (West 2012). Because of this

       relatively recent amendment, Illinois courts have not yet established the precise bounds of the

       “reasonable probability” standard. In any event, it seems clear that the “reasonable probability”


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       standard of subsection (c)(1)(ii) is necessarily a higher threshold than the “materially relevant”

       standard of subsection (c)(1)(i). Test results are materially relevant so long as they “significantly

       advance” a claim of actual innocence. People v. Savory, 197 Ill. 2d 203, 213 (2001). However, to

       satisfy subsection (c)(1)(ii), those tests results would have to advance a claim of innocence so far

       that an acquittal becomes a reasonable probability.

¶ 17           Clearing such a hurdle is even more difficult in defendant’s case, given the strength of the

       State’s evidence. To obtain a conviction for being an armed habitual criminal, the State needed

       only to prove that defendant possessed a firearm and that he had two prior convictions of the

       type listed in the armed habitual criminal statute. 720 ILCS 5/24-1.7 (West 2010). In its factual

       basis, the State presented three key pieces of evidence: (1) Hopkins would testify that she saw

       defendant with the sawed-off shotgun, (2) the sawed-off shotgun was found in a vehicle being

       driven by defendant, and most significantly, (3) defendant admitted to police in a videotaped

       confession that he had possessed the sawed-off shotgun. Further, defendant had apparently

       admitted to possessing the sawed-off shotgun in a phone conversation he had while in jail.

¶ 18           To be sure, Hopkins later recanted her statement that defendant possessed the sawed-off

       shotgun. However, there is no way to know whether Hopkins would have recanted that statement

       prior to defendant’s hypothetical trial. See 725 ILCS 5/116-3(c)(1)(ii) (West 2014) (requiring the

       potential that test results raise a reasonable probability of acquittal at trial had those results “been

       available prior to the defendant’s guilty plea”). Still, even if Hopkins had testified to her most

       recent version of events, the State would have impeached her testimony with her earlier

       statements accusing defendant of possessing the sawed-off shotgun. Further, the hearing on

       defendant’s motion to withdraw his plea in this case provides the blueprint for how a finder of

       fact at defendant’s trial would have taken Hopkins’s changed story. As the circuit court put it,


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       that version of events “was completely a manufactured story, [and] was an insult to the Court’s

       intelligence.”

¶ 19          Regardless, defendant insists a DNA result that did not reveal his DNA on the sawed-off

       shotgun would undermine Hopkins’s previous statements that he possessed the weapon.

       Moreover, he insists that the presence of Hopkins’s DNA or that of her two accomplices would

       substantiate his claim that he was framed. Such results, if raised at trial, however, would not

       create a reasonable likelihood that defendant would be acquitted. It would be decidedly unlikely

       that a trier of fact would outright reject defendant’s multiple confessions to possessing the

       sawed-off shotgun in favor of the implausible version of events in which the defendant was

       framed. Moreover, test results showing a lack of defendant’s DNA would not raise a reasonable

       probability of acquittal at trial, as there could be no guarantee that defendant’s possession of the

       shotgun would result in a transfer of DNA. Indeed, possession of a weapon does not necessarily

       include the physical handling of the weapon itself. E.g., People v. Spencer, 2012 IL App (1st)

       102094, ¶ 17 (delineating elements of constructive possession of a weapon).

¶ 20          In coming to this conclusion, we note that throughout his briefs on appeal, defendant

       asserts that he has repeatedly denied possessing the sawed-off shotgun “and ha[d] continued to

       maintain his innocence.” Of course, those repeated denials represent only the more recent past.

       Previously, defendant pled guilty, thus admitting he possessed the sawed-off shotgun, and also

       admitted to police on videotape that he was in possession of the sawed-off shotgun. Defendant

       insists that his confession was induced by the effects of Xanax. This appeal, however, concerns

       only the circuit court’s denial of defendant’s motion for forensic testing. It is not an opportunity

       for defendant to challenge the voluntariness of his confession, the performance of his attorney, or

       the voluntariness of his guilty plea. Defendant was obligated to show, based on the record, that


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       certain forensic results, had they been available for a trial, could have raised a reasonable

       probability of an acquittal. He has failed to do so.

¶ 21                                             CONCLUSION

¶ 22          The judgment of the circuit court of Tazewell County is affirmed.

¶ 23          Affirmed.




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