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SECOND DIVISION
December 31, 2001

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Defendant James Barksdale appeals from an order of the circuitcourt summarily dismissing his second postconviction petitionwithout an evidentiary hearing. Following a jury trial, defendantwas convicted in 1972 of rape, deviate sexual assault, andaggravated kidnaping, and we affirmed his convictions and sentenceson direct appeal. People v. Barksdale, 24 Ill. App. 3d 489, 321N.E.2d 489 (1974). Thereafter, defendant's subsequent initialpostconviction petition was dismissed in 1985, and his secondpetition in 2000. On appeal, defendant contends that he wasentitled to the appointment of an attorney and an evidentiaryhearing on his second postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 (West 2000))because his petition stated the gist of a meritoriousconstitutional claim based on his allegations that (1) pursuant tosection 116--3 of the Code of Criminal Procedure (Code) (725 ILCS5/116--3 (West 2000)), he was entitled to have DNA tests conductedon certain articles of the victim's clothing that the trial courthad ordered preserved and (2) that the potentially exculpatoryevidence of his innocence could not be tested because the Statedestroyed the evidence in 1982, thereby violating hisconstitutional rights. For the reasons set forth below, we reverseand remand.

We briefly recite some of the relevant testimony fromdefendant's 1972 trial.⁽¹⁾ At trial, the victim testified that onJune 23, 1971, at approximately 4 a.m., a man she later identifiedas defendant passed her in his car while she was walking downSheridan Road in Chicago toward her house. Defendant pulled upalong side of her, jumped out of the car, hit her in the head, andpulled her back into his vehicle. Defendant pushed her onto thefloor in the back seat, placed what she believed was a gun to herhead, and told her to be quiet or he would kill her. Defendantbegan driving and continued to threaten to kill her while keepinghis hand on her upper thigh.

The victim further testified that at approximately 6:10 a.m.,defendant stopped the car in an open area that she did notrecognize. He removed a cord from his trunk which he used to tieher hands behind her back, dragged her from the car, and threw heronto a sleeping bag that he had stretched on the ground. Defendantripped open her blouse and removed her bra and pants. Thereafter,she complied with defendant's request to perform an act of "oralcopulation" upon him, defendant then struck her above her rightbreast and on the side of her head and threatened to beat herfurther, and defendant then performed an act of "oral copulation"upon her. She further stated that she was then allowed to put herclothing back on, and, a short time thereafter, defendant placedher back in the rear seat of the vehicle, defendant again orderedher to remove her clothing, and defendant forced her to haveintercourse and anal intercourse with him. Defendant subsequentlydropped her off in an alley where she told two men nearby what hadhappened, called the police, and she was taken to the hospital.

The victim also described the person who attacked her as ablack male, 5' 10" tall, 150 to 175 pounds, 25 to 26 years of age,with ear-length sideburns, wire-rimmed glasses, a short-sleevedknit shirt, corduroy slacks, brown sandals, black socks, redunderwear, small pock marks on his face under the sideburns, and nomoustache. She described his car as a black two-door ChevroletImpala hardtop with a black interior. She subsequently identifieddefendant as the attacker on August 3, 1971, in a police lineup offive men at the Evanston police station.

A doctor from Holy Cross Hospital testified that he examinedthe victim on June 23, 1971, in the emergency room and took avaginal smear which tested positive for the presence ofspermatozoa. A detective from the Evanston police departmenttestified that on August 2, 1971, he saw defendant driving a 1968black two-door Chevrolet Impala with a black vinyl top on SheridanRoad in Evanston. In a parking lot on the campus of NorthwesternUniversity, the detective approached defendant who, at thedetective's request, opened the trunk of his vehicle. Defendantwas placed under arrest and a search of the vehicle revealed aloaded chrome-plated, .32-caliber, automatic handgun underneath thedriver's seat. Another detective testified that after defendant'sarrest, he recovered a pair of wire-rimmed glasses in a briefcasein the rear seat of defendant's vehicle.

Two witnesses subsequently testified for the defense thatdefendant in June and July of 1971 always wore a moustache and hada medium-length natural haircut. The State presented a rebuttalwitness, who was the complaining witness in an indictment chargingdefendant with another rape, who testified that on July 8, 1971, atapproximately 11 a.m., she received a ride from defendant in a two-door, black Impala on Sheridan Road in Chicago. Defendant stoppedhis car on a dirt road after 30 or 40 minutes where the witness wasconfined for the next 4 hours. It remained dark outside for threehours and was light outside for one hour. The witness lateridentified defendant as a black male, 5' 10" tall, 170 pounds, witha short Afro, small sideburns, pock marks on his face, gold-rimmedglasses, and no moustache. She testified that the next time shesaw defendant at the Evanston police station on August 3, 1971, hewas wearing a moustache. On cross-examination, the witnesstestified that before entering defendant's car, she had consumedone-half of a bottle of wine. She also stated that she originallytold the police that defendant's car was a four-door hardtop, darkcolored, possibly green, with a squeaky passenger door. Onredirect examination, the witness testified that during theincident with defendant, he had a chrome-plated revolver in hishand.

The jury found defendant guilty of rape, deviate sexualassault, and aggravated kidnaping. Defendant was sentenced tothree consecutive terms of 50-100 years', 50-100 years', and 10-14years' imprisonment, respectively, on these convictions. Hisconvictions and sentences were affirmed on direct appeal. Barksdale, 24 Ill. App. 3d 489.

Thereafter, defendant made attempts to obtain habeas corpusrelief, which failed. Defendant filed his first petition forpostconviction relief in January 1985. The petition was dismissedas untimely. None of the issues raised in defendant's priorappeals of his convictions and sentences or in his initialpostconviction petition are at issue in the present appeal.

On January 11, 2000,⁽²⁾ defendant filed his pro se petition forpostconviction relief in the present case. In the petition,defendant admitted that it was his "second Post ConvictionPetition," but maintained that it was "based on Newly DiscoveredEvidence which could have proven [his] innocence." Defendantalleged that his constitutional rights were violated in thefollowing manner:

"The Chicago Police Department distroyed[sic] trial evidence 'Ordered Impounded by thetrial judge, after trial', [sic] which couldprove defendant's innocence, in violation ofEqual Protection and Due Process of Law."

Defendant further alleged the existence of a conspiracy by theState's Attorney's office and the Chicago police department toobstruct justice by destroying the "conclusive evidence that wouldhave proven [his] innocence." According to defendant, his rightsunder the eighth and fourteenth amendments to the United StatesConstitution were violated, especially in light of the "fact" thatthe police "arrested and accepted guilty pleas from the verypossible perpetrator of the alleged offense charged against [himunder] indictment number 71-2375" and violated the trial court's"Impounding Order." As Exhibit "A" to his petition, defendantattached the "Impounding Order" issued by the trial court in caseNo. 71-2375, which stated:

"The Clerk of the Circuit Court of CookCounty, Criminal Division is hereby orderedand directed to impound, preserve and protectthe following articles of physical evidencewhich were introduced at the trial of theabove indictment and maintain these articlesfor any future proceeding:

Victim's clothing including pants, shirt andpants belt[.]"

On February 10, 2000, the trial court summarily dismisseddefendant's pro se petition for postconviction relief. The trialcourt stated:

"All right. In reviewing the file, itwas so old, and in looking at case law, Ican't find anything. And there is a recentdecision that kind of turns on whether therewas bad faith or not.

As far as the petition, that will bedenied.

Off call. I am going to make a findingof no bad faith."

This appeal followed.

We initially address the State's contention that the trialcourt properly dismissed defendant's petition because it wassuccessive and untimely filed. Noting that defendant's firstpetition, filed in January 1985, was dismissed in both the stateand federal courts as untimely, the State argues that the "sameprocedural bar" applies to this second petition which was filed 28years after defendant's 1972 conviction. The State maintains thatunder the current version of the Act, a defendant is required tofile a postconviction petition within three years of his originalconviction. The State also argues that because the Actcontemplates only one petition, defendant's second petition shouldbe rejected. According to the State, defendant never made anattempt to show that in filing his second petition late, he lackedany "culpable negligence," and his claim is therefore "procedurallybarred."

The Act contemplates the filing of only one postconvictionpetition. People v. Jones, 191 Ill. 2d 194, 198, 730 N.E.2d 26(2000). A trial court's ruling on the initial petition has a resjudicata effect on all claims that were raised or that could havebeen raised in the initial petition. Jones, 191 Ill. 2d at 198. The procedural bars to claims in a successive postconvictionpetition will be relaxed only where the defendant demonstratescause for failing to raise the claims in the first petition andactual prejudice resulting from the claimed errors. People v.Flores, 153 Ill. 2d 264, 279, 606 N.E.2d 1078 (1992). "Cause" hasbeen interpreted to mean some objective factor external to thedefense that impeded efforts to raise the claim in an earlierproceeding. Jones, 191 Ill. 2d at 199.

In People v. Erickson, 183 Ill. 2d 213, 700 N.E.2d 1027(1998), the supreme court addressed the issue of successivepostconviction petitions, stating:

"The [Act] contemplates the filing of only onepostconviction petition, although successivepetitions may be allowed where the proceedingson the initial petition were deficient in somefundamental way. [Citation.]" Erickson, 183Ill. 2d at 222-23.

In Flores, the supreme court recognized that the filing ofsuccessive postconviction petitions involves two competinginterests: (1) the State's interest in providing a forum for thevindication of the petitioner's constitutional rights, and (2) theState's legitimate interest in the finality of criminal judgments. Flores, 153 Ill. 2d at 274. Although the Flores court also statedthat the filing of successive postconviction petitions "plaguesthat finality," it further stated that where the claimed errorcould not have been presented in an earlier proceeding, proceduralbars may be "ineffectual in bringing about the finality whichordinarily follows direct appeal and the first post-convictionproceeding." Flores, 153 Ill. 2d at 274-75. In such situations,a second or subsequent postconviction petition may be filed. Flores, 153 Ill. 2d at 275.

This court's Fifth District's decision in People v. Rokita,316 Ill. App. 3d 292, 736 N.E.2d 205 (2000), is also instructive onthe issue of a defendant's ability to file a successivepostconviction petition. In Rokita, the defendant was convicted offive counts of aggravated criminal sexual assault, among othercharges, and sentenced to 80 years' imprisonment. The defendantsubsequently filed a postconviction petition under the Act, whichthe trial court dismissed as frivolous and patently without merit. His appeal of that dismissal was dismissed for want of prosecution. Rokita, 316 Ill. App. 3d at 295-96. The defendant then filed a"motion for forensic testing" pursuant to section 116--3 of theCode. The trial court found that "identity" was an issue in thedefendant's trial which involved the collection and testing of someDNA evidence, that the chain of custody had been established, andthat the specific test requested had been accepted in the relevantscientific community. The trial court, however, denied the motionbecause it found that the result of the proposed testing did nothave the potential to produce new, noncumulative evidence relevantto the defendant's assertion of innocence. Rokita, 316 Ill. App.3d at 296. The trial court also expressed its concern that thedefendant was utilizing section 116--3 in an effort to file asecond postconviction petition and obtain multiple postconvictionhearings. Rokita, 316 Ill. App. 3d at 297.

On appeal, the Rokita court reversed the trial court andremanded the case, finding that, under section 116--3, the ultimateimpact of the new, noncumulative evidence on the defendant'sconviction was not relevant to the determination of whether thedefendant was entitled to such testing. The court also rejectedthe State's argument that section 116--3 had a time limit in whicha motion seeking relief under that section must be filed. Rokita,316 Ill. App. 3d at 300-03.

As indicated above, under certain circumstances, a defendantmay file a successive postconviction petition even though suchpetitions were not specifically contemplated by the Act. Florespermitted a successive petition where the constitutional claimcould not have been raised in the original petition. In thepresent case, DNA testing was not available at the time ofdefendant's trial or at the time that his initial postconvictionpetition was considered. A claim for such DNA testing, therefore,could not have been raised in that petition. Additionally,although the Act now contains a provision requiring that a petitionmust be filed within three years of the defendant's conviction (725ILCS 5/122--1 (West 1998)), and this time limit has been appliedretroactively to convictions before 1991, as stated in Rokita,section 116--3 does not contain a specific time limit within whichrelief must be requested under that section. Additionally, section116--3 of the Code did not become effective until January 1, 1998. Defendant filed his petition based on section 116--3 in January2000. Under these circumstances, the record here does not supportthe State's argument that the petition was properly dismissedmerely because it was successive or because it was time barred. Asa procedural matter, even if defendant's petition was untimelybecause of the three-year limitations period under the Act, casessuch as Rokita indicate that defendant could have also filed amotion for relief directly under 116--3, raising the same issues asin his petition. Accordingly, we find that the petition here wasnot time barred.

Defendant contends that instead of finding that the petitionwas frivolous or patently without merit, as required by the Act atthe first stage of the postconviction proceedings, the trial courtspecifically found that "Mr. Barksdale did not file the petition inbad faith."⁽³⁾ According to defendant, based on this finding, he wasentitled to the appointment of an attorney and further proceedingsto determine whether the petition warranted an evidentiary hearing. Defendant claims that his petition is an "either/or proposition,"i.e., either the State erred and his evidence still exists,entitling him to DNA testing, or the State violated hisconstitutional rights by destroying the evidence that the trialcourt had ordered preserved. He further claims that the evidence,if tested, would have created new, noncumulative evidence thatwould be material to his claim of innocence and that the evidencecould not be obtained from any other source as it was unique. Defendant maintains that he cannot establish the other elements ofsection 116--3, such as the "chain of custody," because theevidence is "out of his hands." Defendant argues that he is notrequired to show that the State acted in bad faith in destroyingthe evidence or that the evidence would have actually proven hisinnocence since he had already shown that the State was placed onnotice that it was required to preserve the evidence.

The State admits in its brief that the impounded evidence wasdestroyed in March 1982, 10 years after defendant's conviction, and16 years before defendant learned it was gone in 1998. The State,however, contends that the petition was properly dismissed becausedefendant bears the burden of establishing that the evidence wasdestroyed in bad faith. The State first claims that there is noevidence, or even an allegation, that the police were acting as theState's agent and that the destruction of the evidence by thepolice cannot be imputed to the State. The State also argues thatbecause defendant already had been convicted at the time that theevidence was destroyed and the evidence, therefore, was not"essential to and determinative of the outcome of his case,"defendant was required to establish bad faith. The State furtherclaims that it was unlikely that defendant could establish therequirement of a sufficient "chain of custody" under section 116--3because the trial court's impounding order makes no reference to"microbiological evidence." According to the State, this suggeststhat the vaginal smear taken from the victim was not impounded orsaved. The State also argues that the Cook County Circuit CourtRules cited by defendant, which permit the destruction of trialevidence at certain times following a defendant's conviction,indicate that the evidence here was mistakenly destroyed pursuantto those rules and not in bad faith.

In People v. Lipscomb, 215 Ill. App. 3d 413, 574 N.E.2d 1345(1991), DNA testing was accepted in Illinois as a scientifictechnique and as admissible evidence. On January 1, 1998, section116--3 of the Code, allowing defendants to request DNA testingwhere such testing was not available at the time of their trials,became effective. 725 ILCS 5/116--3 (West 1998). Section 116--3provides:

"(a) A defendant may make a motion before thetrial court that entered the judgment ofconviction in his or her case for theperformance of fingerprint or forensic DNAtesting on evidence that was secured inrelation to the trial which resulted in his orher conviction, but which was not subject tothe testing which is now requested because thetechnology for the testing was not availableat the time of [the] trial. Reasonable noticeof the motion shall be served upon the State.

(b) The defendant must present a prima faciecase that:

(1) identity was the issue in the trialwhich resulted in his or her conviction; and

(2) the evidence to be tested has beensubject to a chain of custody sufficient toestablish that it has not been substituted,tampered with, replaced, or altered in anymaterial aspect.

(c) The trial court shall allow the testingunder reasonable conditions designed toprotect the State's interests in the integrityof the evidence and the testing process upon adetermination that:

(1) the result of the testing has thescientific potential to produce new,noncumulative evidence materially relevant tothe defendant's assertion of actual innocence;

(2) the testing requested employs ascientific method generally accepted withinthe relevant scientific community." 725 ILCS5/116--3 (West 1998).

A "free-standing" claim of innocence based on newly discoveredevidence is viable as a postconviction claim under the Act. Peoplev. Washington, 171 Ill. 2d 475, 489, 665 N.E.2d 1330 (1996). Suchclaims are to be resolved as any other claims under the Act. Washington, 171 Ill. 2d at 489. The evidence supporting the claimof actual innocence must be new, material, noncumulative, and ofsuch conclusive character as would probably change the result onretrial. People v. Dunn, 306 Ill. App. 3d 75, 80, 713 N.E.2d 568(1999). The newly discovered evidence must be evidence which wasnot available at the defendant's trial and which the defendantcould not have discovered sooner through diligence. People v.Burrows, 172 Ill. 2d 169, 180, 665 N.E.2d 1319 (1996); Dunn, 306Ill. App. 3d at 80.

Section 122--1 of the Act provides:

"Petition in the trial court. Any personimprisoned in the penitentiary who assertsthat in the proceedings which resulted in hisconviction there was a substantial denial ofhis rights under the Constitution of theUnited States or of the State of Illinois orboth may institute a proceeding under thisArticle." 725 ILCS 5/122--1 (West 1994).

Section 122--2.1(a)(2) of the Act provides:

"If the petitioner is sentenced toimprisonment and the court determines that thepetition is frivolous or is patently withoutmerit, it shall dismiss the petition in awritten order, specifying the findings of factand conclusions of law it made in reaching itsdecision." 725 ILCS 5/122.2--1(a)(2).

The Act provides a supplemental proceeding for a defendant whoalleges that he was substantially denied his constitutional rightsat trial, but the filing of a postconviction petition does notentitle a defendant, as a matter of right, to an evidentiaryhearing. People v. Wilson, 307 Ill. App. 3d 140, 144-45, 717N.E.2d 835 (1999). When determining whether to grant anevidentiary hearing, the court must take all well-pleaded facts inthe petition and in the accompanying affidavits as true. Wilson,307 Ill. App. 3d at 145. Nonfactual and nonspecific allegations inthe petition, amounting to mere conclusions, are insufficient torequire a hearing under the Act. Wilson, 307 Ill. App. 3d at 145. "To survive dismissal at the initial stage of the post-convictionproceeding, the petition need only present the gist of ameritorious constitutional claim." People v. Brown, 169 Ill. 2d94, 101, 660 N.E.2d 964 (1995). In order for the petition to setforth the "gist" of a constitutional claim, the petition "need onlypresent a limited amount of detail" and therefore does not need toset forth a claim in its entirety. People v. Edwards, No. 87930(September 20, 2001), quoting People v. Gaultney, 174 Ill. 2d 410,418, 675 N.E.2d 102 (1996).

The Act creates a three-step process for adjudication ofpetitions for postconviction relief. People v. Lawrence, 211 Ill.App. 3d 135, 137, 569 N.E.2d 1175 (1991). The first step of thisprocess requires that the trial court consider the petition todetermine whether it is frivolous or patently without merit, andif it is frivolous or patently without merit, the court shoulddismiss the petition. If the petition is not frivolous or patentlywithout merit, the court must appoint counsel to represent thedefendant, if indigent. Lawrence, 211 Ill. App. 3d at 138.

This division's decision in Dunn is instructive here. InDunn, the defendant was convicted of rape and aggravated battery,and his convictions and sentences were affirmed on direct appeal in1983. In January 1989, the defendant filed a pro se postconvictionpetition raising several issues. In 1992, the defendant wroteseveral letters to the State's Attorney requesting genetic testing. In December 1995, the public guardian, on the defendant's behalf,filed a petition to compel genetic testing which was opposed by amotion by the State. The defendant's petition was withdrawn inApril 1996. The trial court dismissed the defendant'spostconviction petition with prejudice in June 1996. While thedefendant's notice of appeal was filed on the same day in the trialcourt, the notice was not filed in the appellate court untilJanuary 1998. Dunn, 306 Ill. App. 3d at 76-78. Also, although thedefendant's claim for genetic testing was not raised in hispostconviction petition, the Dunn court recognized that the claimhad been raised in the defendant's correspondence with the Stateand by his counsel, before his petition was withdrawn, and that thestatute permitting such testing was not in effect at the time hisoriginal petition was filed. The Dunn court therefore consideredthe claim under the fundamental fairness exception to the waiverrule. Dunn, 306 Ill. App. 3d at 79.

The Dunn court further stated that "the defendant's appealspecifically raise[d] the issue of whether DNA testing can begranted as post-conviction relief when it was unavailable at thetime of [the] defendant's trial." Dunn, 306 Ill. App. 3d at 80. After examining the requirements of section 116--3, the courtfound:

"*** Based on the accuracy anddefinitiveness of DNA testing, and the recentenactment of section 116-3 of the Code ofCriminal Procedure, we agree with [the]defendant that he is entitled to such testing,provided that the required prima facie casehas been made." Dunn 306 Ill. App. 3d at 80-81.

The Dunn court remanded the case to the trial court to determinewhether "any conclusive result is obtainable from DNA testing. This would encompass a determination as to whether there wasejaculation and whether the essential evidence was preserved andavailable." Dunn, 306 Ill. App. 3d at 81.

In the present case, defendant's claim for DNA testing was appropriately raised in his petition. Defendant made a "free-standing" claim of innocence based on evidence that was notavailable to him at trial and which was material, noncumulative,and of a character that could change the result of his trial, ifproven. See Dunn, 306 Ill. App. 3d at 79-80. Also, we find thatdefendant has alleged facts in his petition sufficientlyestablishing a prima facie case that he would have been entitled toDNA testing under section 116--3 if the physical evidence from histrial still existed. Addressing the requirements under section116--3, we first briefly note that there is no dispute thatidentity was a major issue in defendant's conviction. During histrial, the State's case consisted primarily of identificationtestimony. Additionally, defendant presented a defense that he hadbeen misidentified by the victim.

With respect to the section 116--3 requirement that defendantestablish a reliable chain of custody for the evidence on whichtesting is requested, we find that the allegations of the petitionregarding this requirement alleged facts sufficient to satisfy thefirst stage of the postconviction hearing process. The recordcontains an order requiring the evidence to be preserved. Noexpiration date is contained in the order. Defendant alleged thatthe State destroyed the evidence in 1982 in violation of the order,and the State has admitted in this appeal that the evidence was, infact, destroyed. These alleged facts alone suggest that theevidence was in the control of the State and destroyed by thepolice in violation of a valid court order. Although neither theorder nor the record indicates whether the evidence would haveyielded a useful DNA sample if the items had been preserved,defendant was not required to prove this for purposes of the firststage of the postconviction process under the Act. In Dunn, thiscourt remanded a case to the trial court for a determination in thefirst instance of whether the physical evidence in that case wouldhave provided a DNA sample. Here, based on the record presented,had the evidence not been destroyed, defendant would have been atleast entitled to the same determination. We find, therefore, thatbut for the destruction of the evidence by the police, defendantwould have been able to establish a chain of custody.

We further find that, assuming that the destroyed evidence wasstill available to test, defendant would also be able to satisfysubsection (c) of section 116--3. The DNA evidence, if any, wouldproduce, as stated above, new, noncumulative evidence materiallyrelevant to defendant's assertion of innocence. Additionally, DNAtesting, as stated above in Dunn, is now considered very reliableand is widely accepted. Accordingly, we find that the allegationsof defendant's postconviction petition sufficiently satisfied therequirements of section 116--3, entitling defendant to DNA testing. Since the evidence has been destroyed, as admitted by theState, preventing the testing to which defendant would have beenentitled, we consider its affect on defendant's petition and,therefore, whether or not defendant was required to demonstratethat the evidence was destroyed in bad faith in order to prove thathis constitutional rights were violated.

The State relies heavily on Arizona v. Youngblood, 488 U.S.51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988) (Stevens, J.,concurring, and Blackmun, J., dissenting, with Brennan andMarshall, JJ., joining), in support of its contention that adefendant must show that the evidence was destroyed in bad faith. In Youngblood, the defendant was convicted of child molestation,sexual assault, and kidnaping. During the treatment of the victim,doctors, using a "sexual assault kit," collected evidence of theattack, including samples from the victim's rectum and mouth andsamples of his blood, saliva, and hair, which were refrigerated atthe police station. The victim's underwear and T-shirt, whichcontained small amounts of semen, were also collected by thepolice, but not refrigerated or frozen. Youngblood, 488 U.S. at52-53, 102 L. Ed. 2d at 286, 109 S. Ct. at 335. Although acriminologist determined from the samples in the kit that sexualcontact had occurred, he did not perform any other tests and placedthe samples back in the refrigerator. During a subsequent test ofthe stains on the underwear and T-shirt, the criminologist wasunable to obtain any conclusive results due to the small quantityof semen present. Youngblood, 488 U.S. at 54, 102 L. Ed. 2d at286-87, 109 S. Ct. at 335. The defendant presented the defense attrial that the victim had erred in identifying him in aphotographic lineup as the perpetrator of the crime. A defensewitness testified as to what the samples might have shown if testshad been performed on them shortly after they were gathered or bylater tests if the clothing had been properly refrigerated. Thetrial court instructed the jury that if they found that the Statehad destroyed or lost the evidence, they might "infer that the truefact is against the State's interest." Youngblood, 488 U.S. at 54,102 L. Ed. 2d at 286-87, 109 S. Ct. at 335. The jury found thedefendant guilty, but the Arizona Court of Appeals reversed,finding that the loss of the evidence material to the defense wasa denial of due process. Youngblood, 488 U.S. at 54, 102 L. Ed. 2dat 286-87, 109 S. Ct. at 335.

The United States Supreme Court granted certiorari to considerthe extent to which the due process clause of the fourteenthamendment requires the State to preserve evidentiary material thatmight be useful to a criminal defendant. Considering the "'area ofconstitutionally guaranteed access to evidence,'" the Youngbloodcourt reversed, finding that the defendant was required todemonstrate bad faith on the part of the State in the destructionor loss of the evidence. Youngblood, 488 U.S. at 55, 102 L. Ed. 2dat 287, 109 S. Ct. at 336, quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73 L. Ed. 2d 1193, 1203, 102 S. Ct.3440, 3446 (1982). Distinguishing cases such as Brady v. Maryland,373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), where theState failed to disclose to the defendant material, exculpatoryevidence and where good or bad faith of the State is thereforeirrelevant, the Court found that the due process clause "requireda different result when we deal with the failure of the State topreserve evidentiary material of which no more can be said than itcould have been subjected to tests, the results of which might haveexonerated the defendant." Youngblood, 488 U.S. at 57, 102 L. Ed.2d at 289, 109 S. Ct. at 337. The Court justified this differencein treatment when potentially exculpatory evidence is permanentlylost in order to avoid placing on the courts the "'treacherous taskof divining the import of materials whose contents are unknown and,very often, disputed'" (Youngblood, 488 U.S. at 58, 102 L. Ed. 2dat 289, 109 S. Ct. at 335, quoting California v. Trombetta, 467U.S. 479, 486, 81 L. Ed. 2d 413, 421, 104 S. Ct. 2528, 2532 (1984))and placing on the police an absolute duty to retain and preservematerial that might be of conceivable evidentiary significance ina particular prosecution. Youngblood, 488 U.S. at 58, 102 L. Ed.2d at 289, 109 S. Ct. at 337. The Youngblood Court then held that"unless a criminal defendant can show bad faith on the part of thepolice, failure to preserve potentially useful evidence does notconstitute a denial of due process of law." Youngblood, 488 U.S.at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

In People v. Campbell, 252 Ill. App. 3d 624, 625 N.E.2d 130(1993), the court followed the Youngblood "bad faith" test. InCampbell, the police destroyed a "Vitullo kit," containing vaginalswabs and pubic hair combings taken from the victim of a sexualassault, pursuant to police regulations where the State had failedto write a letter requesting that the kit be preserved. TheCampbell court found that nothing more could be said of the kitthan that the evidence might have possibly exculpated thedefendant. Absent a showing of bad faith on the part of thepolice, the Campbell court affirmed the defendant's convictionfollowing the destruction of the kit. Campbell, 252 Ill. App. 3dat 630.

Defendant relies on People v. Hobley, 182 Ill. 2d 404, 696N.E.2d 313 (1998), in which a jury found the defendant guilty ofseven counts of felony murder, one count of arson, and seven countsof aggravated arson relative to a fire that started in thedefendant's apartment building, killing his wife and child, amongothers. The defendant was sentenced to death and his convictionsand sentence were affirmed on direct appeal to the supreme court. People v. Hobley, 159 Ill. 2d 272, 637 N.E.2d 992 (1994). Thedefendant subsequently filed a second amended petition forpostconviction relief, which was dismissed without an evidentiaryhearing.

On appeal of the dismissal of the defendant's postconvictionpetition, the Hobley court affirmed in part, reversed in part, andremanded the case for an evidentiary hearing on the petition. Hobley, 182 Ill. 2d 404. With respect to the Hobley defendant'sallegations in his petition relevant to the present case, the courtreversed the dismissal of the defendant's allegations that theState suppressed the results of certain fingerprint tests performedon a gas can found at the scene of the fire that were negative andfailed to disclose the existence of a second gas can that was alsofound near the place where the fire was believed to have begun. The defendant also alleged that the State destroyed this second gascan shortly after the defendant issued a subpoena requesting itsdisclosure during the postconviction proceedings. The defendantattached evidence supporting his allegations, including documentsshowing that the police inventoried certain evidence under a secondidentification number that was never disclosed to the defendant. The record also demonstrated that the police officer who orderedthe destruction of the second gas can never mentioned the existenceof that gas can in his testimony at the defendant's trial. Hobley,182 Ill. 2d at 428-31, 441. The Hobley court first found that thedefendant had made a substantial showing that the State had failedto disclose two items of material, exculpatory evidence that it hadin its possession in violation of Brady. The court further agreedwith the defendant that, "assuming for the sake of argument thatYoungblood applies," his petition also made a sufficient showingthat the State acted in bad faith in destroying the gasoline can. The Hobley court relied on various facts supporting a finding thatthe destruction of the second can was motivated by bad faith,including evidence that the police catalogued evidence under asecond number that was never disclosed, that the officer whoordered the destruction of the second gas can, after a request forit, never testified to its existence at trial, and that the actualcircumstances surrounding the destruction of the can were not knownbecause the State refused to produce any information without acourt order. Hobley, 182 Ill. 2d at 440-41. The court furtherfound that the defendant had sufficiently shown that the gas canwas important relative to the evidence presented against himbecause the evidence at trial established that the fire wasintentionally ignited through the use of gasoline. The Hobleycourt remanded the case for an evidentiary hearing with respect toa possible Brady violation and to determine whether the gas can wasdestroyed in bad faith, as contemplated by Youngblood. Hobley, 182Ill. 2d at 442-43.

Here, defendant's reliance on Hobley in support of hisargument that he is not required to show bad faith is misplaced. Hobley relied in large part on Brady, and the due process issuesaddressed in Brady are inapplicable here. When potentiallyexculpatory evidence is withheld from a defendant before or duringtrial, under Brady, the intent of the State is irrelevant inconsidering whether the defendant's due process rights wereviolated. The present case does not involve a situation wherepotentially exculpatory evidence was withheld from defendant priorto his conviction. At the time of defendant's trial, the evidencewas neither exculpatory nor incriminating with respect to DNAbecause that type of testing was not yet available. Defendant wasconvicted on substantial identification testimony, and hisconviction was affirmed on direct appeal. The present case,therefore, does not raise due process concerns relative to anunfair trial, as in Brady, where the defendant's conviction wastainted by the fact that the State failed to disclose certainevidence which also may have been destroyed and unavailable at aretrial. For purposes of the present appeal, defendant is deemedto have had a fair trial and due process, relative to his trial, isnot an issue. The issue here is destruction of new evidence thatbecame available after the trial, due to advancements intechnology, that may or may not have been exculpatory.

Although not exactly on point with the facts of the presentcase, we find the reasoning in Youngblood instructive on the issuehere. Youngblood involved potentially exculpatory evidence, whichboth the defendant and the State knew existed, but which was in thecontrol of the State or the police at the time that it was lost ordestroyed, making it unavailable to the defendant. In this sense,Youngblood is similar to the present case. Because Youngbloodrequires that a defendant show that potentially exculpatoryevidence was destroyed in bad faith in order to establish aviolation of his due process rights, prior to his conviction, wefind that a defendant should also be held to the same showing ofthe "bad faith" requirement in order to establish a violation ofhis due process rights when new, potentially exculpatory evidenceis destroyed after his conviction. Although we have found noIllinois cases extending the Youngblood "bad faith" requirement tofacts similar to the present case, we similarly have not found anycases suggesting that a defendant is afforded greater due processprotection after a conviction than before one. As stated above,defendant was convicted as a result of a fair trial. It would beillogical to relieve defendant of the requirement to show bad faithon the part of the State or the police where the evidence wasdestroyed after a fair trial, as opposed to during the trial.

We briefly note that defendant's reliance on People v.Newberry, 166 Ill. 2d 264, 652 N.E.2d 315 (1995), is alsomisplaced. In Newberry, the supreme court held that the defendantwas not required to prove bad faith on the part of the State todemonstrate a violation of his due process rights where a policelab technician inadvertently destroyed suspected narcotics evidencethat the State had intended to use to convict the defendant ofunlawful possession of a controlled substance, and which thedefendant had requested in discovery in order to subject thesubstance to his own tests. The Newberry court affirmed thedismissal of the indictment against the defendant based on thedestruction of the evidence, distinguishing Youngblood and findingthat the suspected drugs at issue were more than "potentiallyuseful" and were, instead, "essential to and determinative of theoutcome of the case." Newberry, 166 Ill. 2d at 315. UnlikeNewberry, where the disputed evidence was the basis upon which theState was prosecuting the defendant, in the present case, thedisputed evidence, i.e., any DNA material, was not used in theprosecution of defendant. Defendant was convicted independently ofthe potentially exculpatory evidence at issue that was destroyed bythe State. The most that can presently be said about that evidenceis that it was "potentially useful" to defendant and, based onNewberry, a defendant is not relieved from demonstrating bad faithon the part of the State in such situations.

Notwithstanding the foregoing, defendant here attached anorder to his postconviction petition that was entered at the timeof his conviction, requiring the clerk of the circuit court toimpound and preserve certain evidence. Defendant's petitionalleges that this evidence was destroyed as part of a conspiracybetween the police and the State, precluding him from having DNAtests conducted on the evidence which allegedly would establish hisinnocence. The State admits that the evidence was destroyed in1982. Although we have found that defendant is required to showthat the destruction was performed in bad faith on the part of theState in order to establish a due process violation, defendant wasnot required to establish bad faith for purposes of the first stageof the postconviction proceeding. Defendant needed only to statethe gist of a meritorious constitutional claim, and the trial courtcould dismiss his petition only if it found that the petition wasfrivolous or patently without merit. We therefore find that thefacts alleged in defendant's petition, which are uncontradicted inthe record before us, do state the gist of a meritoriousconstitutional claim because allegedly potentially exculpatoryevidence had been destroyed despite the trial court's orderrequiring its preservation.

Additionally, the record indicates that although the trialcourt dismissed the petition at this first stage, it never declaredthat the petition was, in fact, frivolous or patently withoutmerit. The trial court stated only that it found "no bad faith." It is unclear whether the trial court was referring to the actionsof defendant in filing the petition or the actions of the State andthe police in destroying the evidence. Regardless of the intent ofthe trial court, a determination regarding "bad faith" by eitherside was not an issue before the court at this first stage of thepostconviction proceeding. We make no finding on this recordwhether or not there was, in fact, bad faith in the destruction ofthe evidence, but we find that, based on the allegations ofdefendant's postconviction petition and the low pleading thresholdthat must be met to reach the second stage of proceeding under theAct, the trial court erred in summarily dismissing the petition.

For the reasons stated, we reverse the judgment of the circuitcourt and remand this matter for further proceedings under thePost-Conviction Hearing Act.

Reversed and remanded.

GORDON and CAHILL, JJ., concur.

1. A more complete statement of facts is included in Barksdalein which this court affirmed defendant's convictions and sentenceson direct appeal. Barksdale, 24 Ill. App. 3d 489.

2. Defendant's petition also indicates that it was filed onJanuary 19, 2000.

3. The transcript of the trial court's dismissal of defendant'spostconviction petition does not contain this specific finding asit is phrased by defendant in his brief.