People v. O'Connell ( 2006 )

SIXTH DIVISION
April 14, 2006
No. 1-04-2154
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
JOHN O'CONNELL, ) Honorable
) Stanley Sacks,
Defendant-Appellant. ) Judge Presiding
PRESIDING JUSTICE McNULTY delivered the opinion of the
court:
John O'Connell, who pled guilty in 1992 to a murder charge,
moved for evidentiary DNA testing in 2004. The trial court
dismissed the motion sua sponte and without giving defendant an
opportunity to argue in support of his motion. We hold that the
statute that permits motions for postconviction DNA testing does
not allow summary dismissal of such motions without notice to the
defendant. Because defendant presented evidence that he had no
memory of the offense when he pled guilty, and he pled guilty
based solely on the strength of the evidence against him, counsel
might have been able to argue persuasively for construing the
statute to permit DNA testing under the circumstances of this
case. Thus, we cannot consider the procedural error harmless.
Accordingly, we reverse and remand for further proceedings on
defendant's motion, with proper notice to defendant.
BACKGROUND
On September 7, 1990, around 1 p.m., a police officer
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responding to an emergency call found Toyoko Hirai naked and
bleeding profusely on the floor of a flower shop. Paramedics
undertook emergency measures to save Hirai. After a brief
discussion with two men at the scene, the officer went to a
nearby tavern where he found defendant sitting in bloodied
clothes. The officer escorted defendant out of the tavern. One
of the men at the scene said he saw defendant leave the flower
shop shortly before 1 p.m. The officer found more than $150,
including more than $10 in coins, in defendant's pockets.
Another officer found marks on the cash register in the flower
shop indicating that someone had pried the register open. Blood
smears covered the register. Officers also found a bloody knife
in defendant's van.
Later that day an assistant State's Attorney wrote out a
statement defendant signed before falling asleep. Pictures taken
at the time defendant signed the statement show his bloodshot
eyes. When Hirai died prosecutors charged defendant with first
degree murder, aggravated criminal sexual assault and armed
robbery. The court denied defendant's motion to suppress the
written statement. Defendant then pled guilty to the charges.
The prosecutor presented a factual basis for the plea.
According to the written statement, defendant arrived at the
tavern near the flower shop around 10 a.m., and he began drinking
tequila and beer. He left around 12:30 p.m. and went to the
flower shop. He threatened Hirai with the knife to coerce her to
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have sexual intercourse with him. He used the knife to pry open
the cash register.
A witness who saw defendant leaving the store found Hirai
bleeding on the floor. The witness and another man ran after
defendant. They caught up with defendant at his van and brought
him back to the flower shop. One witness called the police and
the other went to look in on Hirai. Defendant wandered out of
the shop back to the tavern, where the officer found him a few
minutes later.
The prosecutor told the court that the blood on defendant's
clothes came from Hirai. The prosecutor did not detail the
scientific evidence for the claim.
Several of defendant's relatives testified in mitigation
about defendant's terrible childhood, his good nature, and the
effect of alcohol on his actions. Defendant's wife testified
that defendant screamed at her and struck her when he was drunk.
When he did so he usually passed out and when he awoke he would
remember nothing about the incident. She said that on the
morning of the murder, defendant smoked some "wicky sticks,"
which are marijuana cigarettes laced with stronger narcotics
"[l]ike PCP, Angel Dust, LSD." A bartender confirmed that
defendant stayed in the tavern, drinking, from 10 a.m. that
morning until some time after 12:30 p.m.
Defendant told the court that he did not remember anything
about the crime. He hoped for a chance to warn others about the
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evil effects of alcohol. A psychologist explained that
alcoholics, when drunk, can appear to be fully aware of what they
are doing. "But once they lose consciousness, either going to
sleep or falling unconscious because of the degree of
intoxication, upon awakening they really have no recall as to
what they said, what they did." The psychologist explained that
an alcohol-induced blackout can damage the brain cells involved
in the formation of memory. Thus, even if defendant actually
told the assistant State's Attorney all the facts in the
statement the assistant State's Attorney wrote, defendant might
honestly have had no recollection of the incident at all when he
later awoke in his jail cell.
On May 6, 1992, the court sentenced defendant to natural
life in prison, with lesser concurrent sentences on the other
charges.
In April 2004 defendant filed a motion to have DNA testing
of some evidence. On April 13, 2004, the trial court scheduled a
hearing on the motion for April 29, 2004. The record shows no
notice to defendant of the proceedings held on April 13, 2004, or
of the hearing scheduled for April 29, 2004. Neither defendant
nor his attorney came to court on April 29, but an assistant
State's Attorney appeared in court. The court dismissed the
motion on grounds that defendant had not contested the identity
of the offender in the original proceedings, because defendant
pled guilty. The record shows that the court ordered the clerk
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to notify defendant of the disposition of his motion. Defendant
filed a timely appeal.
ANALYSIS
We review de novo the trial court's decision summarily
dismissing the motion for DNA testing. People v. Franks, 323
Ill. App. 3d 660, 662 (2001). Section 116-3 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2004)) governs
motions for postconviction DNA testing of evidence. That section
provides:
"(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 *** forensic DNA
testing *** 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
of the motion 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[.]"
725 ILCS 5/116-3 (West 2004).
Defendant argues that the court erred by dismissing the
motion in an ex parte hearing, without providing him notice or
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any opportunity to argue in favor of his motion for DNA testing.
"'An elementary and fundamental requirement of due
process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity
to present their objections.'" In re Application of the
County Collector, 217 Ill. 2d 1, 33 (2005), quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657
(1950).
Illinois courts have applied this general principle to
postconviction proceedings. See People v. Bounds, 182 Ill. 2d 1,
5 (1998). Our supreme court has reminded us that "the protection
of a defendant's right to procedural due process in post-
conviction proceedings is of critical importance." People v.
Kitchen, 189 Ill. 2d 424, 435 (2000).
The prosecution contends that section 116-3 permits summary
disposition of DNA motions without notice or opportunity to argue
because section 116-3 does not include any provisions regarding
procedures for deciding such motions. Defendant asks us to treat
section 116-3 motions like motions under section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)). That
section, governing postjudgment motions, similarly includes no
provisions expressly requiring notice or an opportunity to argue
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prior to disposition. Some defendants convicted of crimes have
brought petitions under section 2-1401 to contest their
convictions or sentences.
In People v. Pearson, 216 Ill. 2d 58 (2005), the defendant
brought such a petition. The trial court first decided to
construe the petition as one brought under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)), rather than
section 2-1401. The trial court then applied the express
provisions for summary dismissals under the Post-Conviction
Hearing Act and dismissed the petition without notice to
defendant. Our supreme court first acknowledged that the trial
court had authority to recharacterize a petition nominally
brought under section 2-1401 as a petition under the Post-
Conviction Hearing Act. Pearson, 216 Ill. 2d at 66. But the
court held that before the trial court could so recharacterize a
petition, due process required the court (1) to provide notice to
the defendant of its intention to treat the petition as one
brought under the Post-Conviction Hearing Act, (2) to warn the
defendant of the effect of the recharacterization on defendant's
rights, and (3) to allow the defendant the opportunity to
withdraw or amend the pleading. Pearson, 216 Ill. 2d at 68.
The careful delineation of the necessary procedures appears
superfluous if the trial court had authority to dismiss summarily
the 2-1401 petition. Several panels of the appellate court have
concluded that the trial court lacks authority to dismiss
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summarily 2-1401 petitions. E.g., People v. Edwards, 355 Ill.
App. 3d 1091, 1100 (2005) (and cases cited therein). In Edwards
the court distinguished summary dismissals from sua sponte
dismissals, and noted that the court had authority to dismiss
frivolous petitions sua sponte.
"Sua sponte action means only that the court initiates
a motion, which then follows the otherwise applicable
procedures, including notice of the proposed judicial
action and the opportunity to argue against such
action, as required in fairness to the litigants."
Edwards, 355 Ill. App. 3d at 1100.
The court noted the express provision in the Post-Conviction
Hearing Act for summary dismissals without notice and an
opportunity to respond, and the court emphasized that section 2-
1401 lacked any such provision.
"The summary procedures under the Act were specifically
set by the legislature. It is not our role to make
these procedures available under other circumstances.
It is up to the legislature to do so if it sees fit."
Edwards, 355 Ill. App. 3d at 1100.
The Appellate Court for the Fourth District has rejected
Edwards and similar cases, arguing that summary dismissal must be
acceptable for section 2-1401 petitions because courts have found
that procedure acceptable for petitions under the Post-Conviction
Hearing Act. People v. Bramlett, 347 Ill. App. 3d 468, 472-73
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(2004). As the Appellate Court for the Second District cogently
answered, "The Bramlett court seems to believe that the trial
courts may mix and match elements of the various procedural
provisions without the parties knowing in advance what procedure
will be used." People v. Keller, 353 Ill. App. 3d 830, 835
(2004).
In People v. Dyches, 355 Ill. App. 3d 225, 229 (2005), a
panel of the Appellate Court for the First District held that
"summary dismissal, which is a drastic procedure, should not be
read into the procedures provided by section 2-1401." However,
the court held that harmless error analysis applied, permitting
affirmance of the dismissal of a petition that had "patently
incurable" defects. Dyches, 355 Ill. App. 3d at 229.
Section 116-3, like section 2-1401, gives a person convicted
of a crime a limited right to challenge the conviction, and it
also lacks any express procedural provision. Following the
reasoning of Edwards and Dyches, we refuse to read special
summary dismissal procedures into section 116-3. The trial court
must, at a minimum, provide notice to the defendant of its sua
sponte motion to dismiss, and the court must give the defendant
an opportunity to respond.
We recognize that our holding conflicts with the Fourth
District's holding in People v. Stevens, 315 Ill. App. 3d 781(2000). In that case the trial court summarily dismissed the
defendant's motion for postconviction DNA testing pursuant to
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section 116-3. The appellate court held that the absence of any
statutory procedural provision in section 116-3 entailed the
adoption of summary dismissal procedures. Stevens, 315 Ill. App.
3d at 784. In light of general principles regarding the need for
notice and an opportunity to respond to potentially dispositive
motions, we refuse to read into a silent statute a special
summary dismissal procedure the legislature did not expressly
adopt. We find that the court in Stevens failed to heed our
supreme court's emphasis on the "critical importance" of
protecting a defendant's procedural rights in postconviction
proceedings. See Kitchen, 189 Ill. 2d at 435.
Nonetheless, following Dyches, we further hold that harmless
error analysis applies to the summary dismissal of a
postconviction petition for DNA testing of evidence. The trial
court dismissed the petition because defendant pled guilty to the
charges, and therefore, the court reasoned, he could not meet the
statutory requirement of showing that "identity was the issue in
the trial." 725 ILCS 5/116-3(b)(1) (West 2004).
A Missouri statute, like section 116-3 in Illinois, permits
postconviction DNA testing in certain instances. Mo. Rev. Stat.
'547.035 (Supp. 2001). The Missouri statue requires the
petitioner to show that "[i]dentity was an issue in the trial."
Mo. Rev. Stat. '547.035 (Supp. 2001). The Supreme Court of
Missouri construed the statute in Weeks v. State, 140 S.W.3d 39(Mo. 2004). In that case the defendant pled guilty to rape and
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nine years later he sought DNA testing of the semen recovered
from the victim. The trial court summarily dismissed the
petition because the defendant pled guilty. The supreme court
reversed, holding:
"The statute's requirements are met if the movant
demonstrates that up to the time of the plea -- as that
is as far in the trial process as the case proceeded --
identity was at issue." Weeks, 140 S.W.3d at 47.
The Missouri court's resolution expressly allows defendants
to obtain DNA testing if they entered guilty pleas while
protesting innocence. See North Carolina v. Alford, 400 U.S. 25,
27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Several state
legislatures have expressly allowed defendants who pled guilty to
obtain postconviction DNA testing of the evidence against them.
See Ohio Rev. Code Ann. '2953.82 (LexisNexis 2006); State v.
Smith, 34 Kan. App. 2d 368, 371-72, 119 P.3d 679, 683 (2005). We
note that all of these statutes, including the Missouri statute,
differ significantly from the Illinois statute. Nonetheless,
Illinois courts might choose to construe some parts of the
statutes similarly.
Here, defendant told the court he had no memory of the
offense, and he presented supporting testimony that he was drunk
at the time of the offense, and he often did not remember what he
did when he was drunk. An expert affirmed that alcoholics can
experience such a pattern of memory loss. The prosecution
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claimed that Hirai's blood on defendant's clothes helped prove
that he murdered her, but the prosecutor did not say what tests
substantiated the claim. If the blood on defendant's clothes did
not come from Hirai, one might doubt that defendant committed the
murder.
The evidence against defendant appears overwhelming, and it
fully justified his decision to plead guilty even assuming he did
not remember the crime. However, an adept attorney might
persuasively argue for interpreting section 116-3 to permit DNA
testing under the circumstances of this case, despite the guilty
plea. This court and the trial court could both benefit from a
fuller development of the arguments concerning interpretation of
section 116-3. Because we cannot conclude that the procedural
defects had no prejudicial effect, we reverse and remand for
proper notice of the court's sua sponte motion to dismiss, and to
give defendant an opportunity to respond to the dispositive
motion.
Reversed and remanded.
FITZGERALD-SMITH, J., concurs.
TULLY, J., dissents.
Justice TULLY, dissenting,
I dissent from the majority opinion because I believe the
dismissal of the petition is inevitable and further proceedings
in the circuit court will only delay dismissal.
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I wholly agree with the majority that summary dismissal
should not be read into the procedure provided by section 116-3
as it is unfair to a defendant, when faced with the proposed
dismissal of his section 116-3 petition, to be deprived of notice
and an opportunity to respond. I further agree with the majority
that we should apply the harmless error analysis to the circuit
court's summary dismissal of defendant's postconviction petition
for DNA testing.
I disagree with the majority because in this case I believe
the procedural defects had no prejudicial effect. Here, the
defendant was required to make a prima facie case that identity
was the issue in the trial which resulted in his conviction. The
record clearly shows that identity was not an issue because the
defendant pled guilty. Moreover, postconviction DNA testing is
predicated upon a claim of actual innocence. The defendant has
never wavered from his guilty plea and has never claimed he is
actually innocent.
In the instant case, identity was never at issue. The
defendant here did not deny committing the acts charged, pled
guilty and did not have a trial. Thus, the inherent defects in
defendant's 116-3 petition are patently incurable. I find that
regardless of whether the circuit court erred in failing to
provide defendant with notice and an opportunity to be heard,
defendant could not have cured the inherent defects in his 116-3
petition because he could not make a prima facie case that
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identity was at issue. The dismissal of the petition is
inevitable and further proceedings will only delay that result.
Because I find that any procedural error was harmless, I
would affirm the order of the circuit court.
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