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.
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.
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.
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 ...