Appeal from Circuit Court of Champaign County Honorable Charles McRae Leonhard, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
JUSTICE COOK delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.
¶ 1 Defendant, Ricky A. Patterson, appeals the trial court's denial of his motion for forensic testing not available at trial pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/116-3 (West 2008)). He contends he was denied a reasonable level of assistance of counsel because his counsel failed to provide sufficient information to the trial court in support of his motion. We agree and reverse.
¶ 3 In April 2003, a jury convicted defendant of first degree murder (720 ILCS 5/9-1 (West 2002)), arson (720 ILCS 5/20-1 (West 2002)), and concealment of a homicide (720 ILCS 5/9-3.1 (West 2002)) based on the June 18, 2002, murder of Derrick Prout. Bloodstains on the carpet of defendant's rental home matched (1) an unidentified male and (2) Prout. The trial court sentenced defendant to 50 years' imprisonment for murder, 5 years imprisonment for concealment of a homicide, to run consecutively to the murder sentence, and a concurrent 5-year sentence on the arson conviction. This court affirmed the convictions and sentences on direct appeal in People v. Patterson, 347 Ill. App. 3d 1044, 1056, 808 N.E.2d 1159, 1169 (2004).
¶ 4 On June 15, 2006, defendant filed a pro se post-conviction petition and separate motion for deoxyribonucleic acid (DNA) testing pursuant to section 116-3 of the Criminal Procedure Code. Defendant also filed a motion to proceed in forma pauperis and for the appointment of counsel. Defendant's post-conviction petition did not address section 116-3. In his separate section 116-3 motion, defendant alleged that his claim of actual innocence is predicated upon DNA testing and "independent DNA testing in this case [would] reveal newly discovered evidence of the defendant['s] innocence."
¶ 5 On June 21, 2006, the trial court appointed counsel for defendant on his post-conviction petition. In 2007, defendant's appointed counsel amended the post-conviction petition but did not file an amended section 116-3 motion on defendant's behalf. The amended post-conviction petition included an amended section 116-3 claim, stating that defendant "believes he has met the requirements of 725 ILCS 5/116-3 [(West 2006)] to have a new DNA testing completed: more accurate DNA testing is available now than at the time of the trial, identity was an issue at trial, and the State has maintained custody of items to be retested."
¶ 6 The State filed an answer to defendant's amended post-conviction petition denying defendant had met the requirements of section 116-3 for new DNA testing. The State alleged defendant had "failed to show what form of DNA testing, not available at the time of trial, would result in material non-cumulative evidence."
¶ 7 Between July 2007 and January 2008, the trial court held an evidentiary hearing on defendant's amended post-conviction petition. The State made a motion for a directed finding on several claims in defendant's amended post-conviction petition, alleging defendant had not made a prima facie case as to those issues. The State specifically addressed those claims referenced in paragraph 3, subsections (b), (c), (d), (e), (f), (g), and (l) of defendant's amended post-conviction petition. Defense counsel responded "[the State] does not comment on [subsections] [(m)] and [(n)]. [The State] has agreed that [(a)], [(h)], [(j)], [(k)], and [(o)] there is prima facie evidence. So I just want to talk about the ones [the State] objects to." Counsel was accurate in his statement that the State did not comment on subsections (m) and (n). The record reflects, however, that the State only agreed that defendant had presented prima facie evidence on claims (a), (h), and (j). The State never agreed that defendant had presented prima facie evidence on subsections (k) and (o). These sections were never addressed by the State in its motion for a directed verdict. (Defendant's amended post-conviction petition shows that subsection (o) referred to defendant's section 116-3 request, and subsection (k) referred to an ineffective assistance of counsel claim regarding counsel's failure to object to certain testimony of the DNA witness.) Moreover, the record shows that defense counsel never presented evidence or testimony in relation to defendant's section 116-3 request (subsection (o)) at any point during the hearing. Accordingly, the State never had an opportunity to refute, or acquiesce to, defendant's argument on his section 116-3 request.
¶ 8 At the conclusion of the hearing, the trial court asked the parties to submit written arguments. The record reflects the State filed its argument on June 20, 2008. In the State's written argument, it asserted defendant did not meet the requirements of section 116-3 because he "failed to articulate what form of DNA testing, not available at the time of trial, would result
in material non-cumulative evidence."
¶ 9 The trial court's docket sheet does not reflect that defendant filed his written argument. The record on appeal also lacks a copy of defendant's argument. However, the court's May 29, 2009, order denying defendant's petition cites defendant's written argument. In that order, the court denied each of defendant's claims, including paragraph 3, subsections (a) to (o). The court denied defendant's section 116-3 (subsection (o)) request because he did not identify a more accurate form of testing, did not specify how that form of testing was unavailable at trial, and failed to identify any evidence contemplated by section 116-3 that was not first tested and now should be.
¶ 10 In 2009, defendant filed a pro se motion to reconsider the denial of his amended post-conviction petition. Defendant's motion was written in general terms and did not specifically reference any one issue from the post-conviction ...