Appeal from the Circuit Court of McHenry County. No. 88--CF--611 Honorable Ward S. Arnold, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
The defendant, Richard P. Hockenberry, Sr., appeals from the order of the circuit court of McHenry County denying his motion pursuant to section 116--3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116--3 (West 1998)) for forensic testing not available at trial.
In 1988, the defendant was charged with aggravated criminal sexual assault of his ex-wife (Ill. Rev. Stat. 1987, ch. 38, par. 12--14(a)(2) (now 720 ILCS 5/12--14(a)(2) (West 1998))) and home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12--11(a)(2) (now 720 ILCS 5/12--11(a)(2) (West 1998))). At trial, the defendant testified that he had been in his ex- wife's home at the time alleged, but he claimed that he entered the home with her consent and that he did not sexually assault her. The jury convicted the defendant of both charges, and the court sentenced him to consecutive 12-year prison terms. This court affirmed the judgment. People v. Hockenberry, No. 2--89--0779 (1991) (unpublished order under Supreme Court Rule 23).
In 1999, the defendant filed a pro se motion for forensic DNA testing pursuant to section 116--3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/116--3 (West 1998)). The petition alleged the following. During the investigation of his criminal case, "samples" from which DNA could be obtained were collected from the defendant and his ex-wife. Also, because the defendant was convicted of a sex offense, the Illinois State Police maintained his DNA profile. The defendant further alleged that the identity of the perpetrator was an issue at his trial. The DNA testing the defendant now sought had been available in 1989; however, the State's expert witness during the trial testified that no laboratories in Illinois were conducting DNA testing at that time. The defendant alleged that the samples were still in the possession of a police crime laboratory and had not been replaced, altered, or tampered with in any way. The defendant alleged that the requested DNA testing was relevant to his assertion of innocence.
The trial court denied the defendant's motion, explaining that "[d]efendant's identity was not an issue in his trial and the defendant has provided no prima facie evidence thereof." The court denied the defendant's motion to reconsider, and he timely appealed. On appeal, the defendant argues that the denial of his motion must be reversed because the trial court erred in ruling that identity was not at issue at trial.
The State asserts that this court lacks jurisdiction to hear this appeal because the denial of the defendant's motion was not a final judgment. However, we agree with People v. Savory, 309 Ill. App. 3d 408, 411-12 (1999), appeal allowed, 188 Ill. 2d 578 (2000), that the denial of a section 116--3 motion is final and immediately appealable. The denial of a section 116--3 motion ends a distinct proceeding on the merits by holding that the defendant has no right to the relief he seeks. See generally Flores v. Dugan, 91 Ill. 2d 108, 112 (1982) (final order is one that determines litigation on the merits). Without a right to appeal, the defendant would be without an opportunity to seek review of the trial court's determination. Savory, 309 Ill. App. 3d at 411-12.
We turn to the merits. The defendant's appeal hinges on the application of section 116--3, which 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 fingerprint or 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; 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.
(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, non-cumulative evidence materially relevant to the defendant's assertion of actual innocence;
(2) the testing requested employs a scientific method generally accepted within the relevant scientific community." ...