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People v. Gawlak

Court of Appeals of Illinois, Third District

November 20, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
SYLWESTER GAWLAK, Defendant-Appellant.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 07-CF-2547, Honorable Daniel J. Rozak, Judge, Presiding.

          JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.

          OPINION

          SCHMIDT, JUSTICE

         ¶ 1 Defendant, Sylwester Gawlak, appeals the Will County circuit court's denial of his postconviction motion for deoxyribonucleic acid (DNA) testing under section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2014)). Specifically, he argues the court's denial of his motion "must be reversed and the case remanded for further proceedings" because the court (1) "denied [him] his constitutional right to retain counsel to represent him on his motion" and (2) "erred when it would not allow him to present an expert in DNA testing to testify at the hearing on the motion." We vacate the court's denial of his postconviction motion for DNA testing and remand for further proceedings.

         ¶ 2 FACTS

         ¶ 3 Following an April 2009 trial, a jury convicted defendant of two counts of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2006)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2006)). Thereafter, the trial court sentenced defendant to mandatory consecutive terms of six years' imprisonment for each count of predatory criminal sexual assault and three years' imprisonment for aggravated criminal sexual abuse.

         ¶ 4 In August 2011, defendant, pro se, filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)), followed by a supplemental petition for postconviction relief in December 2013. The trial court appointed the Office of the State Appellate Defender (OSAD) to represent defendant on his postconviction petition.

         ¶ 5 In March 2015, defendant filed a pro se "petition for relief from void order" pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2014)). Defendant later retained private counsel to represent him on this motion.

         ¶ 6 In May 2015, defendant filed a pro se "motion for post-conviction forensic DNA testing" pursuant to section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2014)). Specifically, he sought mitochondrial DNA and polymerase chain reaction short tandem repeat (PCR-STR) DNA forensic testing of hair and clothing collected by the State. He further requested that the hair and "rape kit" evidence be tested for DNA using the PCR-STR and mitochondrial testing method and that the clothing be tested for "touch DNA."

         ¶ 7 At a September 2015 hearing, different private counsel than the one representing defendant on his section 2-1401 motion appeared before the trial court and indicated his intent to file a "limited scope appearance" under Illinois Supreme Court Rule 13(c)(6) (eff. July 1, 2013) to represent defendant on his motion for DNA testing. The court denied private counsel's request to enter a limited scope appearance but informed counsel that he was "certainly welcome to [file an appearance] on the post-conviction proceeding." Following a November 2015 hearing in which defendant appeared pro se, the court denied defendant's motion for DNA testing.

         ¶ 8 This appeal followed.

         ¶ 9 ANALYSIS

         ¶ 10 On appeal, defendant argues that the trial court's denial of his postconviction motion for DNA testing "must be reversed and the case remanded for further proceedings" because the court (1)"denied [him] his constitutional right to retain counsel to represent him on his motion" and (2)"erred when it would not allow him to present an expert in DNA testing to testify at the hearing on the motion."

         ¶ 11 Rule 13(c)(6) provides that an attorney may make a limited scope appearance on behalf of a party in a civil proceeding by filing a notice of limited scope appearance in which he "identif[ies] each aspect of the proceeding to which the limited scope appearance pertains." Ill. S.Ct. R. 13(c)(6) (eff. July 1, 2013). The State maintains that the limited-scope-appearance rule does not apply here because the issue concerns a criminal proceeding, not a civil one. According to the State, "[a] motion for forensic DNA testing is available only to convicted criminal defendants pursuant to the Code of Criminal Procedure." We note, however, the fact that the motion for DNA testing at issue here may only be brought by a convicted criminal does not necessarily make the subsequent proceedings criminal in nature. In fact, even proceedings under the Act (725 ILCS 5/122-1 to 122-7 (West 2010)), which are brought only by convicted persons, are considered civil in nature. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (noting that postconviction proceedings are "not part of the criminal proceeding itself" and are "in fact considered to be civil in nature"); People v. Johnson, 191 Ill.2d 257, 270 (2000) ("A post-conviction proceeding is not part ...


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