Appeal from Circuit Court of Champaign County No. 80CF948 Honorable Charles McRae Leonhard, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Appleton concurred in the judgment and opinion.
¶ 1 Defendant was convicted of murder in 1983 and received an extended-term sentence of 80 years. In July 2006, defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)) based on newly discovered deoxyribonucleic acid (DNA) evidence excluding him as the donor of semen and blood left on the bedding where the rape and murder of the victim took place. The trial court denied the petition, finding the DNA evidence would not change the result at retrial. Defendant appeals, arguing the DNA evidence entitles him to a new trial as the new evidence would probably change the result upon retrial. We agree with defendant and reverse the trial court's judgment.
¶ 3 On August 8, 1980, three-year-old Brianna Stickle was raped and murdered in Rantoul. On August 11, 1980, defendant, Andre Davis, was charged with her murder. The five-count charging instrument included four counts alleging felony murder in that while committing the forcible felonies of rape, indecent liberties with a child, and aggravated kidnaping, defendant killed Brianna. The fifth count alleged defendant killed the child by suffocating her, knowing such acts created a strong probability of death or great bodily harm. The jury returned a general verdict of guilty. The jury could not unanimously agree defendant should be sentenced to death, and the trial court sentenced him to a term of natural life. Defendant appealed, and this court reversed the conviction and remanded for a new trial, finding reversible error occurred when the jury asked a question of the bailiff and the bailiff failed to forward it to the trial court. People v. Davis, 105 Ill. App. 3d 549, 561, 433 N.E.2d 1376, 1385 (1982).
¶ 4 On June 10, 1983, defendant was again convicted of murder after a new trial. Again, five charges of murder were brought against defendant, four of them felony murder charges and the fifth alleging defendant killed the victim by suffocating her, knowing such acts created a strong probability of death or great bodily harm. Again, the jury returned a general guilty verdict, not stating under which charge defendant was convicted. On June 30, 1983, the trial court sentenced defendant to an extended term of 80 years' imprisonment. He appealed and this court affirmed his conviction. People v. Davis, No. 4-83-0477 (Apr. 3, 1984) (unpublished order under Supreme Court Rule 23).
¶ 5 On February 17, 2004, defendant filed a motion for DNA testing of blood and semen evidence in the case. Such testing was not available at the time of trial and on May 6, 2004, an agreed order for testing was entered. On July 27, 2005, a second agreed order for additional DNA testing was entered.
¶ 6 The DNA test results excluded defendant as the donor of any of the blood and semen evidence tested, and defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code. On February 22, 2011, the trial court denied the petition, finding the newly discovered DNA evidence "did not undermine confidence in the outcome of defendant's trial on the charge of murder." The court further held "in the context of the record that the DNA evidence is not of the conclusive character, required by the law, that would probably result in a disposition other than conviction were the murder charge to be retried."
¶ 7 This appeal followed.
¶ 9 Defendant appeals, contending the newly discovered DNA evidence would probably change the result upon retrial. The State responds that (1) defendant failed to meet the due-diligence requirements for section 2-1401 relief and (2) the DNA evidence is not conclusively exculpatory.
¶ 10 A. Standard of Review
¶ 11 Defendant acknowledges the usual standard of review for the denial of a section 2-1401 petition is abuse of discretion (People v. Haynes, 192 Ill. 2d 437, 461, 737 N.E.2d 169, 182-83 (2000)) but argues an exception should be made in this case as he contends the case was resolved based on stipulated facts and the trial court did not have to resolve factual issues or determine the credibility of witnesses. He argues de novo review is appropriate where the issues presented are questions of law unless the trial court judge presiding over post-conviction proceedings has "special expertise or familiarity" with the original trial or sentencing which has some bearing on the disposition of the petition. See People v. Beaman, 229 Ill. 2d 56, 72, 890 N.E.2d 500, 509 (2008). The judge in this case was not the original trial judge and has no particular expertise or familiarity with the trial or sentencing. Defendant asserts de novo review is appropriate.
¶ 12 We disagree. First, the Beaman decision dealt with a third-stage post-conviction petition and not a section 2-1401 petition. Second, although abuse of discretion is no longer the standard for all section 2-1401 petitions, it applies to this one. The only exceptions which have been found to support de novo review for dismissal of a section 2-1401 petition are where (1) the petition was based on interpretation of supreme court rules (Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 98-99, 858 N.E.2d 1, 9 (2006)) and (2) dismissal was made without a response from the State and was found to be equivalent to dismissal for failure to state a cause of action (People v. Vincent, 226 Ill. 2d 1, 16-17, 871 N.E.2d 17, 27-28 (2007)). Finally, the only way to determine if a section 2-1401 petition should be allowed is to weigh the evidence presented at trial in light of newly discovered evidence, and that is a factual, not a legal, determination.
¶ 14 One of the components required in a section 2-1401 petition to be successful is a showing of due diligence in filing the petition. In a section 2-1401 petition, a party must set forth specific factual allegations as to (1) the existence of a meritorious claim or defense in the original action; (2) due diligence in presenting the claim or defense to the court in the original action; and
¶ 15 The State argues defendant has not met the due-diligence requirement. The State raised this argument in the trial court and recognizes the trial court did not base its denial of defendant's petition on this basis. The State argues this court may affirm on any basis supported by the record. See People v. Harvey, 379 Ill. App. 3d 518, 521, 884 N.E.2d 724, 728 (2008).
¶ 16 The State contends the type of DNA technology used in this case was available and accepted in the scientific community as early as 1996 and the database of samples for comparison was available in 1999. However, defendant did not file his motion for DNA testing until 2004, and his section 2-1401 motion was not filed until 2006. While the State recognizes section 2-1401 petitions based on DNA testing under section 116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/116-3 (West 2010)) are not subject to the two-year statute of limitations placed on most section 2-1401 petitions (735 ILCS 5/2-1401(c) (West 2010)), the State argues defendant offers no excuse for failing to ask for testing for the eight years between 1996 and 2004 or the five years between 1999 and 2004. The State contends this shows a lack of due diligence.
¶ 17 The State argues petitioner must demonstrate he exercised due diligence in both
(1) ascertaining his rights and (2) acting upon his rights within an appropriate time frame. See People v. Bramlett, 347 Ill. App. 3d 468, 473, 806 N.E.2d 1251, 1255 (2004). The State notes defendant offers no explanation for waiting eight years after the particular DNA testing was available or waiting five years after the database of samples for comparison was available to file the section 2-1401 petition. Therefore, defendant did not act reasonably in waiting to file his petition. Airoom, 114 Ill. 2d at 222, 499 N.E.2d at 1387 (Defendant must demonstrate "under the circumstances he acted reasonably, and not negligently."). Although defendant was not subject to the two-year statute of limitations for filing a section ...