Opinion
No. 1-14-3943
03-30-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BURRELL GERALDS, JR., Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 97 CR 366
Honorable Kenneth J. Wadas, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the trial court dismissing defendant's petition for relief under Section 2-1401 is affirmed; the petition for relief from judgment was not timely filed because the evidence relied upon by defendant to support his petition for relief from judgment was revealed at the time of trial in 2001; therefore, the two-year time period permitted by law to file a petition was not extended on grounds of fraudulent concealment. Even if the petition had been timely filed, the outcome of defendant's trial would be the same had the alleged concealed evidence been produced at trial. Finally, we correct defendant's mittimus so that his robbery conviction is vacated and his
sentence for possession of a stolen motor vehicle is reduced.
¶ 2 Defendant, Burrell Geralds, Jr., appeals from a trial court ruling dismissing his petition for relief under section 2-1401. In 2001, following a jury trial, defendant was found guilty of murder, robbery, residential burglary, and possession of a stolen motor vehicle. Defendant filed the instant 2-1401 petition in March 2014, alleging evidence implicating an alternate defendant was fraudulently withheld. The State made an oral motion to dismiss and after arguments, the trial court granted the State's motion. For the following reasons we affirm the judgment of the trial court. We note that defendant's mittimus should reflect a sentence of seven years for possession of a stolen motor vehicle, to run concurrently with his other sentences, instead of fourteen years running consecutively. Additionally, his mittimus should be corrected so that it does not reflect a conviction of robbery.
¶ 3 BACKGROUND
¶ 4 The testimony at defendant's, Burrell Geralds, Jr., trial revealed the following. The victim, Father Paul Smith, was a Catholic priest who had been partially paralyzed prior to his death as a result of injuries he sustained in an earlier automobile accident. Defendant was present in the victim's home, working as a caretaker on the evening of November 22, 1996. Father Smith's corpse was found on the morning of November 23, 1996 by one of his nursing assistants, Joann Dillon, when she came into work that morning. Dillon found Father Smith's dead body under a pile of covers on the floor of his bedroom - he was lying in the fetal position with his face and arms tied in duct tape. Duct tape was wrapped around his head covering his forehead, eyes, nose, and mouth. According to the postmortem examination, the tape was wrapped so tightly that Father Smith's "nose [was] compressed and flattened due to the tape."
The medical examiner testified that the duct tape was cut rather than torn and that Father Smith likely struggled as his wrists were bound (the victim's hands were also bound with a telephone cord). He further testified that someone probably had to help hold the victim's wrists, implying more than one person was necessary to bind the victim. Dillon also informed police that Father Smith's car was missing. According to the log book Father Smith kept for caretakers to sign in and out of, defendant signed in on November 22, but never signed out. After learning police were searching for him, defendant called police and agreed to come in for questioning.
¶ 5 Defendant initially gave a statement to police that on the night of November 22, 1996, he dropped off Roosevelt Horton, a high school student who helped take care of Father Smith, at Horton's home at around 9 or 10 p.m. He explained that when he returned with the car he never entered Father Smith's home on the evening of November 22 because a person prevented him from doing so. After detectives confronted defendant with the inconsistencies of his statement, defendant gave another statement to police. In this statement defendant explained that he went to White Castle with Horton before dropping Horton off and returning to Father Smith's home. The record reveals police found a white castle cup in the victim's home. Defendant admitted that he was present when Frederick Carter rang Father Smith's doorbell sometime after 10:30 p.m. and that defendant let Carter in despite Carter apparently telling defendant "I ought to rob" Father Smith. Defendant then claimed he waited in the living room while he left Carter alone in the bedroom with Father Smith. Carter returned and asked for duct tape, which defendant admitted to giving to Carter. Defendant claimed he later went to the bedroom and saw Father Smith tied up. He stated that Carter asked him where the key to the safe was and defendant told him that it was on a string around Father Smith's neck. Defendant claimed that after Carter took
the money from the safe, defendant, Carter, and Carter's twin brother left in Father Smith's car.
¶ 6 Defendant then gave a statement recorded by a court reporter to the State's Attorney, largely consistent with the second statement he gave police. In the court reported statement defendant was advised of his rights, and that the assistant State's Attorney present was a prosecutor and not defendant's lawyer. Defendant admitted he allowed his codefendant, Frederick Carter, to enter Father Smith's home. Defendant knew Carter planned on robbing the victim. After gaining entrance into the home, Carter went into the bedroom where the victim was preparing for bed. 30 minutes later, Carter came out of the bedroom and asked defendant for duct tape. Defendant found duct tape and gave it to Carter. Defendant then waited 45 minutes before going into the bedroom, where he "saw Father Smith laying on the floor, legs tied, arms - legs taped and tied, arms, wrists tied and taped and tape on his face." Carter asked defendant where the key to the safe was. Defendant showed Carter the key to the victim's safe was located on a string on Father Smith's neck. Carter took the keys, removed items from the safe and then defendant showed Carter where the keys to the victim's car were. They walked outside, met Carter's brother, who was acting as a lookout, and left the location driving Father Smith's car. Defendant discussed selling the car while they drove to purchase drugs with the stolen money. After stating he smoked cocaine at Carter's residence the entire day of November 23, 1996, defendant thought the Carters were going to sell the car and cut him out, and he insisted that he receive his share for the sale of the car. Defendant left after he claimed he saw a news report of Father Smith's death. He turned himself in to police after speaking with his family.
¶ 7 Rubin Buckley, a drug dealer, testified at trial that he went to Carter's home at roughly 5
a.m. on the morning of November 23, 1996. He exchanged two bags of cocaine with defendant for the keys to the victim's car. Rubin returned after four hours, gave defendant more cocaine, and then left with the car for another four hour period. Through this system of rental, Rubin had unsupervised use of the car for 3 four-hour periods. Defendant was subsequently charged with the murder and robbery of Father Smith. Defendant was tried together with his codefendants Frederick Carter and Freeman Carter.
¶ 8 Cari Sandberg, the state forensic scientist who analyzed latent fingerprints from the crime scenes testified at trial. She testified that the prints found on the duct tape and car turned up negative when matched against defendant and his codefendants. However, defendant's prints matched prints lifted from decedent's bedroom dresser and a White Castle lid and straw found in Father Smith's home. Regarding latent fingerprints found in decedent's car, defendant's counsel asked Sandberg "[w]hat did you compare them with," and she replied by naming the three codefendants: "Frederick E. Carter, Freeman Carter, Burrell Geralds." However, one of the codefendants at trial, Frederick Carter, also had counsel cross-examine Sandberg. Codefendant's counsel questioned Sandberg concerning the fingerprints taken from the interior glass sunroof from decedent's car were matched by the State's automated fingerprint identification system to a convicted felon named Ron Owens. Sandberg also testified that she could not tell how old the latent fingerprints were.
¶ 9 On December 20, 2001, a jury found defendant guilty of murder, robbery, residential burglary, and possession of a stolen motor vehicle. He was sentenced to 100 years for murder, 15 years each for robbery and residential burglary to be served concurrently, and a 14 year consecutive sentence for possession of a stolen motor vehicle. On appeal, we vacated the
conviction and sentence for robbery because the robbery charge should have merged with the felony murder charge. People v. Geralds, No. 1-02-0279 (2004) (unpublished order under Supreme Court Rule 23). We also reduced defendant's sentence for possession of a stolen motor vehicle from 15 years running consecutively to 7 years to be served concurrently. Id. Defendant subsequently filed multiple unsuccessful motions for post-conviction relief and relief under 735 ILCS 5/2-1401 (West 2014). Defendant eventually received a box of crime lab reports and similar documents from the office of the Attorney General. Though defendant's initial pleading claimed he received the documents in April 2010, defendant argues he received the evidence in April 2012. The crime lab report contained Illinois state police's automated fingerprint identification system report matching Ron Owens' fingerprints to latent prints found on the interior of the sunroof of the victim's car. The fingerprint report indicated Owens could not be excluded when compared to latent prints found on the duct tape.
¶ 10 Defendant filed the instant 2-1401 petition pro se on March 21, 2014. Defendant made four claims for relief: conflicting witness testimony given to the grand jury; perjury by one of the State's witnesses; that he gave his admissions only under duress; and that the State fraudulently concealed evidence of statements made by investigators and crime scene reports linking the fingerprints of Owens to latent prints from the victim's car. Oral arguments on the petition were held on August 28, 2014. The State argued defendant's petition was without merit and refuted his claims, specifically arguing how fingerprint records were available prior to trial. The State also argued the petition was untimely filed and there was no fraudulent concealment of evidence to toll the running of the limitations period. The trial judge agreed and dismissed the petition. This appeal followed.
¶ 11 ANALYSIS
¶ 12 Defendant seeks relief from his conviction of murder, robbery, residential burglary, and possession of a stolen motor vehicle more than a decade after the conviction. Under Section 2-1401, "[r]elief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section." 735 ILCS 5/2-1401 (West 2014). "The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record." 735 ILCS 5/2-1401(b) (West 2014). Additionally, "the petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years." 735 ILCS 5/2-1401(c) (West 2014). Section 2-1401 may provide relief in criminal as well as civil cases. People v. Vincent, 226 Ill. 2d 1, 8 (2007). To obtain relief under section 2-1401, the petitioner must prove, by a preponderance of evidence, some ground for "preclud[ing] entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition." Id. at 7-8. For a defendant to obtain a new trial under section 2-1401, he must show (1) evidence has been discovered since the trial; (2) the evidence is of such character that it could not have been discovered prior to trial by the exercise of due diligence; (3) the evidence is material and not merely cumulative; and (4), the evidence is of such character that it will likely change the result on retrial. People v. Burrows, 172 Ill. 2d 169, 180 (1996). The defendant must both demonstrate due diligence in bringing the claim, and the new evidence must be capable of altering the result on retrial:
"in all the cases we have found in which newly discovered evidence was held not to be a sufficient ground for relief *** it was for one of two reasons: either the losing litigant, through the exercise of ordinary diligence, could have discovered and produced the evidence at trial; or the evidence was not of so material and controlling a nature that it probably would have changed the outcome of the trial." Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 283-84 (1982).
Defendant filed his amended 2-1401 petition on March 21, 2014, but defendant was convicted on December 20, 2001, well past the two year period covered by 2-1401. 735 ILCS 5/2-1401 (West 2014). Defendant argues, however, that the time prior to his receipt of the fingerprint evidence should not be counted against that two year period because the evidence was fraudulently concealed during that time. He argues that because his petition was filed less than two years after April 2012, when he received the fingerprint evidence, his petition should be considered timely filed. In order to toll the two-year limitations period to file his petition on a claim of fraudulent concealment defendant must prove two things: (1) that the State affirmatively attempted to prevent defendant from discovering the grounds for relief; and (2) that defendant demonstrated good faith and reasonable diligence in attempting to discover the grounds for relief prior to expiration of the statute of limitations period. People v. Coleman, 206 Ill. 2d 261, 290-91 (2002). We review de novo "section 2-1401 proceedings in which either judgment on the pleadings or dismissal for failure to state a cause of action has been entered." Vincent, 226 Ill. 2d at 15.
¶ 13 Whether the Two-Year Limitation Period for Filing a
2-1401 Petition was Tolled Due to Fraudulent Concealment
¶ 14 In the oral motion to dismiss, the State argued that the petition was untimely filed. We
will initially determine whether defendant's petition was timely filed because a section 2-1401 "petition must be filed not later than 2 years after the entry of the order or judgment." 735 ILCS 5/2-1401 (West 2014). In the present case, defendant was convicted in 2001 and filed his petition in 2014 - well past two years after entry of judgment. As stated above, for his petition to be considered timely filed defendant must prove that he was under legal disability or duress, or that the grounds for relief were fraudulently concealed for that period. Id. Defendant argues that time prior to April 2012 should not be counted toward the two-year period for filing his petition and that his claim was timely filed within two years of his receipt of the documents. Defendant argues the State fraudulently concealed evidence of fingerprints matching Ron Owens and that the State never refuted his argument. However, the record reveals the State argued at the hearing on defendant's 2-1401 petition it did not fraudulently conceal the evidence because the evidence was available prior to trial and that any claim of the State subsequently concealing the information was based purely on speculation. Moreover, the existence of Owens' fingerprints in the car was revealed in open court at trial during cross-examination of the State's forensic analyst, Cari Sandberg, by a codefendant's counsel. Defendant failed to allege facts supporting a claim that the State took affirmative measures to conceal the fingerprint records prior to 2012. The record reveals defendant knew of the fingerprint evidence in 2001, and defendant failed to show how he demonstrated good faith or reasonable diligence in discovering the fingerprint records. Therefore, because 12 years elapsed between the trial and the filing of the current 2-1401 petition, we affirm the dismissal of the petition as being untimely filed. 735 ILCS 5/2-1401 (West 2014); Coleman, 206 Ill. 2d at 290-91.
¶ 15 Defendant's claimed grounds for relief were not fraudulently concealed because
defendant failed to show the State took affirmative measures to conceal the fingerprint records. Coleman, 206 Ill. 2d at 290-91. Sandberg testified at trial concerning the fingerprint evidence - codefendant's counsel cross-examined Sandberg about Illinois state police's automated fingerprint identification system matching a fingerprint card from Ron Owens to latent fingerprints found in the victim's car. Thus, the information defendant claims as his grounds for relief was testified to at trial by the State forensic analyst. His claim that the State affirmatively prevented discovery of the evidence prior to trial is refuted by the record because the State's witness answered questions concerning the evidence on cross-examination. Moreover, defendant fails to allege any facts that the State affirmatively concealed the evidence after defendant's trial. Therefore, he has presented no reason to excuse his failure to comply with the two-year requirement for filing a petition under section 2-1401. 735 ILCS 5/2-1401 (West 2014).
¶ 16 Not only has defendant failed to show the State affirmatively concealed fingerprint records, but defendant also failed to show he took any diligence in seeking such records. Nothing in the record indicates the State affirmatively hid the fingerprint records or that the State lied about the existence of such records at any point. That a codefendant cross-examined forensic analyst Sandberg concerning the automated fingerprint identification system match of Owens' fingerprints to prints found in decedent's car indicates the grounds for relief were readily available - had defendant exercised due diligence, he would have easily obtained the fingerprint evidence prior to trial. The evidence was available, and in fact presented, at defendant's trial by a codefendant.
"As regards petitioners' diligence in discovering the ground for relief, we think a litigant exercises ordinary diligence in pretrial discovery when he poses
interrogatories reasonably calculated to elicit the information important to his case. If his opponent then suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former's fault, not of the latter's negligence." Ostendorf, 89 Ill. 2d at 284-85.
Though defendant attempts to analogize his case to Ostendorf, the present case has no similarity to Ostendorf. In Ostendorf, the plaintiffs filed their petition four years after entry of judgment arguing the two-year limitation on bringing the petition was tolled through the defendant's fraudulent concealment of evidence, and that the plaintiffs could not have uncovered the information earlier using reasonable diligence. Id. at 281. The defendant in Ostendorf deliberately withheld discovery material by denying the existence of internal safety reports, even though such reports were within the scope of interrogatories posed by the plaintiffs. Id. at 286. The only reason the plaintiffs found out about the reports was because their attorney later discovered the documents during his representation of a different party in a different matter. Id. at 281. In the instant case, there is no allegation the State deliberately withheld information, or that defendant ever requested the information following his trial, or that defendant only learned of the evidence after exercising extraordinary effort. Defendant fails to prove his due diligence in pursuing the grounds for relief, a necessary element of fraudulent concealment. Coleman, 206 Ill. 2d at 290 (finding that a defendant did not make a "clear showing *** that grounds for relief were concealed" when the defendant did not show the prosecutor took affirmative acts to conceal involvement in other cases, and that the defendant failed to exercise due diligence because the information was easily discoverable through a search of a published judicial opinion) (emphasis
in original). The evidence was not fraudulently concealed because if defendant had exercised due diligence, he would have found the evidence prior to trial, and he has not provided any reason why he was prevented from acquiring the information after trial. Ostendorf, 89 Ill. 2d at 285. To succeed on his claim of fraudulent concealment, defendant must show not only that the fingerprint record could not be discovered through an exercise of due diligence prior to trial (Burrows, 172 Ill. 2d at 180), but also that he was prevented from acquiring the information during the interim between the trial and his filing of a petition under section 2-1401, else that time would be calculated toward his two year filing period. 735 ILCS 5/2-1401 (West 2014). Defendant failed to show the State affirmatively acted to conceal the fingerprints at any point in time. He cannot file his petition in 2014 seeking relief from his 2001 conviction for murder when he knew of the existence of the evidence at trial. See Coleman, 206 Ill. 2d at 291.
¶ 17 Defendant argues that the fingerprint evidence could not have been discovered through an exercise of reasonable diligence, relying on People v. Molstad to support the argument that a 2-1401 petition is still timely filed when the evidence could not have been discovered through due diligence. People v. Molstad, 101 Ill. 2d 128 (1984). However, we find Molstad distinct from the present case. The defendant in Molstad filed a timely posttrial motion, prior to sentencing, requesting a new trial to introduce the affidavits of his convicted codefendants. Id. at 132. In the present case, defendant waited over a decade to file his petition for relief. Moreover, in Molstad it was not possible for the defendant to introduce the evidence at trial because it would have required that other defendants implicate themselves; "no amount of diligence could have forced the codefendants to violate their fifth amendment right to avoid self-incrimination." Id. at 135. In the present case, defendant did not act within a timely manner and faced no structural
limitation to presenting or acquiring the evidence. Unlike in Molstad, the information was not structurally prevented from being presented at trial: at the same trial, codefendant Frederick Carter cross-examined the State's witness concerning the matter. Nor has defendant shown some structural barrier to presenting or acquiring the evidence after his trial. Defendant cannot say, therefore, that he faced some structural barrier to either discovery or presentation of fingerprint records. Defendant's argument that his petition was timely filed because he faced a structural barrier to presenting the evidence, relying on Molstad, is without merit, because Molstad is inapposite to the present case.
¶ 18 Defendant has neither shown that the State affirmatively prevented him from discovering fingerprint evidence connecting Ron Owens to the victim's stolen vehicle, nor that he exercised reasonable diligence in attempting to uncover the information within two years following entry of judgment against him. The evidence linking Owens' fingerprints to latent prints found on the interior of the sunroof of Father Smith's car was presented at trial when codefendant's counsel cross-examined Sandberg. Defendant was made aware of the evidence at trial and he has not presented any reason he could not have taken some steps to come forth with his grounds for a petition after trial. Because defendant cannot show the fingerprint report was fraudulently concealed after his trial, his 2-1401 petition is not timely filed as it was filed well over two years after the entry of judgment. 735 ILCS 5/2-1401 (West 2014). As such, we affirm the trial court's dismissal of defendant's 2-1401 petition for relief because it was not timely filed. Id.
¶ 19 Fingerprint Evidence Would not Likely Change Result on
Retrial, Therefore Defendant has Not Alleged a Meritorious Defense
¶ 20 However, even if defendant's petition had been timely filed, we still find that defendant failed to prove he is entitled to a new trial because the grounds for relief would not alter the
result on retrial. If defendant's 2-1401 petition was timely filed, and if we construe defendant's allegation of fraudulent concealment of evidence as true, he has not raised an issue likely to change the result on retrial. Whether Ron Owens' fingerprint was on the duct tape or not, defendant admitted in a court reporter-recorded statement that he knowingly allowed the murderer and robber into the victim's home to carry out a robbery, and he fled the murder scene with the murderer to enjoy the fruits of their crime. Therefore, defendant would still likely be convicted because he was accountable for the robbery and murder of Father Smith. Defendant fails to satisfy the requirement that he raise an issue that would likely change the result on retrial. 735 ILCS 5/2-1401 (West 2014). To succeed on a 2-1401 petition, "the party seeking a new trial must establish that the newly discovered evidence would have been likely to produce a different result in the trial." Molstad, 101 Ill. 2d at 135. Defendant cannot do so because at best defendant's argument supports an additional possible suspect rather than an alternate suspect. The fingerprint evidence linking Owens to the stolen vehicle does not call into question the basis of the jury's decision, nor does it contradict defendant's court reported confession.
¶ 21 Defendant's statement to the police and the court reporter directly contradict the possibility of Ron Owens was an alternate suspect. Defendant gave a court recorded statement explaining that he admitted Carter to Father Smith's residence on the night of November 22, 1996. He admitted that he fetched duct tape for Carter, that he told Carter where the key to the safe was, and that he left the home with Carter, the money, and Father Smith's car. According to the testimony of Rubin Buckley, defendant arranged with Carter to rent the vehicle to Buckley, a drug dealer, in exchange for cocaine. Buckley took the car on three unsupervised trips lasting four hours each. Introduction of fingerprint evidence from the vehicle matching Owens indicates
that Owens could have been in the vehicle at some point in time. The testimony provided at trial indicates defendant rented out the victim's car and that a drug dealer had unsupervised use of the car for twelve hours. Any number of persons, including Owens, could have gotten in the car while the drug dealer was using the car. Therefore, evidence of Owens being in the stolen vehicle does not call into question any of defendant's admission. Defendant urges the State to test the duct tape to see if it will match a current set of Owens' fingerprints, because if Owens' prints match the prints on the duct tape it would exculpate defendant. We disagree. Defendant admitted to fetching the duct tape and providing it to the murderer, regardless of who that murderer was. Defendant was convicted of murder even though forensic analyst Sandberg testified that neither defendant's nor his codefendant's fingerprints matched the latent prints on the duct tape. Identifying who the prints matched would only point to an additional suspect, not an alternate suspect, given that the jury did not need fingerprint evidence linking defendant to the duct tape used to murder Father Smith. Therefore, even if the evidence of Owens' fingerprints was admitted at trial, it would not call into question the jury's verdict. Our supreme court granted a new trial in Molstad because the evidence called into question the jury's verdict. Molstad, 101 Ill. 2d at 135. The other defendants in Molstad gave affidavits, after they were convicted but prior to sentencing, claiming defendant Molstad was not present at the crime. Id. This called the jury's verdict into question because only one witness testified that Molstad participated in the crime, and the jury would have different testimony with the affidavits of Molstad's codefendants to weigh against the identification of Molstad. Id. at 134. The current case is distinguishable from Molstad. That Owens might have participated in the crime does not call into question whether defendant knowingly allowed someone to come into Father Smith's
home for the purpose of committing a robbery which resulted in the death of the victim. It also fails to contradict defendant's testimony that he, along with his codefendants, stole the victim's car and used the proceeds of the robbery to purchase drugs.
¶ 22 Defendant claims that evidence linking Ron Owens to the crime would change the result on retrial because it undermines the confession defendant gave because that confession never mentioned Owens. We disagree.
"Newly discovered evidence, the effect of which is to discredit, contradict and impeach a witness, does not afford a basis for the granting of a new trial. If, however, it contradicts a witness by showing facts, a new trial may be ordered when it appears that such new evidence has sufficient probative force or weight to produce a result different from that obtained at the trial which has been had." People v. Holtzman, 1 Ill. 2d 562, 568 (1953)
Defendant has not shown how the fingerprint evidence contradicted any witness. He simply points out that latent fingerprints found in the victim's car matched an inked set of fingerprints belonging to Owens. This fails to impeach defendant's confession because it does not contradict defendant's admission to aiding in the robbery and murder of Father Smith. It does not refute how defendant waited in the living room while someone was alone with Father Smith, or how he fetched duct tape for someone to bind and kill Father Smith, or how he left Father Smith's home in Smith's car with the people who took Smith's money. Nor does it refute Buckley's testimony that defendant rented the victim's car to Buckley in exchange for cocaine. In Ostendorf we found the grounds for relief could have prevented entry of judgment against plaintiffs had they been made available at trial. Ostendorf, 89 Ill. 2d at 286. The defendant in Ostendorf was asked
to provide reports of any tests it conducted regarding its tractor. The defendant replied that records of tests were unavailable, and that it had no knowledge of its tractor posing a safety hazard. Id. at 280. However, the defendant had a report indicating the very safety hazard plaintiff complained of; the defendant's response directly contradicted its answers to interrogatories and its defense raised at trial. Id. at 281. Hence, we found the defendant affirmatively misled the plaintiff, and that the withheld evidence could alter the result on retrial. Id. at 286. The present case is unlike Ostendorf because the fingerprint evidence does not contradict other evidence provided by the State, nor did the State lie about the existence of the fingerprint record. Defendant argues that his confession was just one piece of evidence, was not conclusive, that Owens could not be ruled out as matching the latent print found on the murder weapon, and that the credibility of his confession was called into question. However, defendant has the burden of proving the grounds for relief are material and could alter the result on retrial. Burrows, 172 Ill. 2d at 180. Defendant has not provided any evidence linking Owens to Father Smith's home, simply that Owens could not be excluded as the source of the fingerprint on the duct tape. Thus, the fingerprint report indicating a match to Owens does not contradict any of the testimony offered at trial, nor does it call into question the veracity of defendant's confession. Therefore, defendant's requested grounds for relief are insufficient to support a claim for a new trial. Holtzman, 1 Ill. 2d at 568.
¶ 23 Mittimus Corrected
¶ 24 Though defendant was convicted of murder, robbery, residential burglary, and possession of a stolen motor vehicle, on appeal we granted defendant partial relief. We found his conviction and sentence of robbery should have merged with his felony murder conviction, and
therefore vacated the robbery conviction. People v. Geralds, No. 1-02-0279 (2004) (unpublished order under Supreme Court Rule 23). We also ordered his sentence for possession of a stolen motor vehicle be changed from 14 years to be served consecutively with his other sentences, to a 7 year sentence to run concurrently with his other sentences. Defendant argues that he is still listed as serving a 14 year sentence for possession of a stolen motor vehicle, and that he is still serving a 15 year robbery sentence. This court has the authority to order the clerk of the circuit court to correct a defendant's mittimus. See Ill. S. Ct. R. 615(b); People v. Jones, 376 Ill. App. 3d 372, 395 (2007). The State agrees with defendant that his mittimus should be corrected to reflect that we vacated the robbery conviction and reduced the sentence for possession of a stolen motor vehicle. Accordingly, we order the correction of defendant's mittimus to show that his conviction and sentence for robbery was vacated, and that he is serving a 7 year concurrent sentence for possession of a stolen motor vehicle instead of a 14 year consecutive sentence.
¶ 25 We affirm the judgment of the trial court dismissing defendant's petition for relief under Section 2-1401. 735 ILCS 5/2-1401 (West 2014). The petition was not timely filed and defendant failed to prove the fingerprint report was fraudulently concealed. Defendant did not prove the State affirmatively prevented him from acquiring the information, and he did not use reasonable diligence in attempting to find the evidence that was already introduced at his trial by a codefendant. In addition, defendant failed to prove that admission of the fingerprint report matching latent prints from the stolen car to Owens would alter the result on retrial. The jury convicted defendant having heard that his fingerprints did not match the murder weapon, along with defendant's court reported admission. Evidence linking Owens to the stolen vehicle does not call into question defendant's confession, nor would it cast other evidence in a different light.
Finally, we direct the clerk of the circuit court to correct defendant's mittimus to reflect that his conviction and sentence for robbery was vacated, and that he is serving a seven year sentence concurrently for possession of a stolen motor vehicle.
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons the judgment of the circuit court of cook county is affirmed. We direct the clerk of the circuit court to correct defendant's mittimus.
¶ 28 Affirmed; mittimus corrected.