Appeal from the Circuit Court of the 10th Judicial Circuit, No. 08-CF-360 Peoria County, Illinois, Honorable Michael Brandt, Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court, with opinion. Presiding Justice Wright concurred in the judgment and opinion.
¶ 1 Defendant James Fuller was convicted of home invasion (720 ILCS 5/12-11(a)(6) (West 2006)) and criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)). The trial court sentenced him to two concurrent terms of natural life in prison. On appeal, defendant argues that (1) his criminal sexual assault conviction must be vacated because it is a lesser included offense of home invasion, and (2) the case should be remanded because the trial court failed to conduct an adequate inquiry into his posttrial claims of ineffective assistance of counsel. We affirm in part, and remand for further posttrial proceedings.
¶ 2 Defendant was charged with home invasion and two counts of criminal sexual assault. The bill of indictment alleged that on June 3, 2006, defendant broke into S.S.'s home and sexually assaulted her. Count I of the indictment charged defendant with home invasion, alleging that he entered the dwelling place of the victim and "committed upon [S.S.] within that dwelling a criminal sexual assault in violation of Chapter 720 Act 5 Section 12-13(A)(1) [sic]." Counts II and III alleged that defendant "committed an act of sexual penetration with [S.S.] by the use of force or threat of force" and cited section 12-13(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-13(a)(1) (West 2006)).
¶ 3 At trial, S.S. testified that she woke up around 4 a.m. on the morning of June 3, 2006. As she rolled over, a man grabbed her wrists and told her that he would not hurt her if she was quiet. The man climbed in bed behind her and said that he was in a fight and needed a place to hide until the police were gone. He knew her name because he had gone through her purse. He let her stand up and then pushed her back on the bed. The man inserted his finger into S.S.'s vagina. He then grabbed her right hand and placed it on his penis over his pants. S.S. pulled her hand away and accidentally scratched him. S.S. told the man that she would hide her head under a pillow if he would leave the house. When she put her head under the pillow, the man ran out of the house.
¶ 4 S.S. stated that she never saw the man's face. After the incident, she noticed that some money had been taken out of her purse and a bottle of bleach was sitting by the front door with a sock on it. As part of their investigation, the police collected fingernail clippings of S.S.'s right hand.
¶ 5 Debra Minton, a State Police forensics officer, testified that she analyzed a buccal swab obtained from defendant and the fingernail clippings from S.S.. Minton tested one of the fingernails in 2006. The clippings were resubmitted in 2008, and she tested more of the sample. The DNA profile of the material obtained from the fingernails matched defendant's DNA.
¶ 6 The court allowed evidence of other crimes to establish propensity, identity and modus operandi. Two other witnesses testified that they were sexually assaulted in a manner similar to the sexual assault of S.S.. Both women testified that they were alone at home in bed in the early morning hours of the day. The man climbed in bed behind them, said he needed a place to hide from the police, and had oral and vaginal sex with them. He then used bleach to clean the women's bodies, took their bedding and left. DNA samples were recovered and tested from both scenes. Defendant could not be excluded as the male contributor from either sample. Neither witness could identify defendant at trial.
¶ 7 Defendant testified on his own behalf. He denied entering the homes of S.S. and the other two victims.
¶ 8 The jury found defendant guilty of home invasion and criminal sexual assault. The State filed a verified statement that defendant was a habitual criminal based on a 1982 conviction for rape in Kansas and a 1991 Peoria County conviction for armed robbery. The trial court sentenced defendant to two terms of natural life as a habitual criminal on January 26, 2010.
¶ 9 On February 24, 2010, defendant filed a motion to reconsider his sentence. On April 9, 2010, prior to the hearing on the motion to reconsider, defendant filed a notice of appeal from the January 26 order.
¶ 10 In response to a motion filed by defendant's attorney on appeal, this court entered a minute order dismissing the appeal, which stated:
"Motion of Appellant to Dismiss Appeal and Remand the Cause to the Circuit Court for a Ruling on Defendant's Timely Filed Motion to Reconsider Sentence is
ALLOWED. APPEAL DISMISSED AND REMANDED."
¶ 11 On remand, the trial court conducted a hearing on the motion to reconsider. At the hearing, defendant filed a pro se motion alleging ineffective assistance of trial counsel. Defendant claimed that counsel was ineffective for, among other things, failing to (1) obtain a DNA report from defendant's retained expert, (2) present evidence to show that S.S.'s fingernails were tested in 2006, (3) show where S.S.'s ...