People v. Ladd

2023 IL App (5th) 220473-U

Opinion

2023 IL App (5th) 220473-U NOTICE NOTICE Decision filed 07/20/23. The This order was filed under text of this decision may be NO. 5-22-0473 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) No. 18-CF-460 ) PERICE L. LADD, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and McHaney concurred in the judgment.

ORDER

¶1 Held: Where the defendant’s section 2-1401 petition did not present any facts that would have prevented the entry of a judgment against the defendant after trial, and where the circuit court complied with the timing requirements for dismissal of the petition, and where no arguments to the contrary would have merit, the defendant’s court- appointed appellate attorney is granted leave to withdraw, and the judgment of the circuit court, dismissing the section 2-1401 petition, is affirmed.

¶2 A jury found the defendant, Perice L. Ladd, guilty of the Class 1 felony of residential arson,

and due to his criminal history, he was sentenced as a Class X offender to imprisonment for 30

years. The judgment of conviction was affirmed on direct appeal. The defendant, who continues

to serve his sentence, filed a petition for relief from judgment pursuant to section 2-1401 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)). The circuit court dismissed

the petition sua sponte. The defendant now appeals. The defendant’s appointed attorney on

1 appeal, the Office of the State Appellate Defender (OSAD), has concluded that the appeal lacks

substantial merit. On that basis, OSAD has filed with this court a motion to withdraw as counsel

pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987)), along with a memorandum of law in

support thereof. OSAD gave proper notice to the defendant. This court gave him an opportunity

to file a pro se brief, memorandum, or other document explaining why OSAD should not be

allowed to withdraw as counsel, or why this appeal has merit, but the defendant has not availed

himself of that opportunity. This court has examined OSAD’s Finley motion and the

accompanying memorandum of law, as well as the entire record on appeal, and has concluded that

this appeal does indeed lack merit. Accordingly, OSAD is granted leave to withdraw as the

defendant’s counsel, and the judgment of the circuit court, dismissing the defendant’s section 2-

1401 petition, is affirmed.

¶3 BACKGROUND

¶4 The defendant was charged with residential arson. See 720 ILCS 5/20-1(b) (West 2018).

He was tried before a jury, which returned a verdict of guilty. Subsequently, the circuit court

sentenced him to imprisonment for 30 years and mandatory supervised release for 3 years. On

direct appeal, the defendant’s appointed attorney, OSAD, argued solely that the prison sentence

represented an abuse of discretion. This court rejected that argument and affirmed the judgment

of conviction. People v. Ladd, 2023 IL App (5th) 200271-U. The decision in the direct appeal

includes a thorough summary of the testimony and other evidence adduced at trial. Here, the

evidence will be described as necessary to decide the instant appeal.

¶5 At the defendant’s trial, Tosha Henry testified that on October 5, 2018, she was at her

trailer, which she rented. Three people—the defendant, a man named “Equiton,” and Henry’s 13-

year-old daughter—were also there. At approximately 7:40 a.m., Henry and her daughter left the

2 trailer and walked toward the daughter’s school. Along the way, they ran into the daughter’s uncle,

Timmothy Ladd, who took the daughter the rest of the way to school. Henry turned around and

walked back toward her trailer. When she was “three houses away” from her trailer, she saw the

defendant and Equiton depart from her trailer and drive away in Equiton’s car. At approximately

7:50 a.m., Henry got back to her trailer and opened the front door, at which point she saw smoke

“everywhere” inside. Henry ran across the street, to her aunt’s trailer, where she told the aunt to

phone the police. Henry did not have her own phone, for earlier that same morning, the defendant

had “smacked” it out of her hand and had taken it. The defendant was upset because Henry had

accidentally called him by another man’s nickname, and because that other man had phoned Henry

that morning.

¶6 Henry had security cameras on the exterior of her trailer—two on the front, two on the

back. The surveillance video was stamped with the time. These cameras showed Henry and her

daughter depart from the trailer for the walk to school. They also showed the defendant, shortly

afterward, remove one of the cameras from the trailer’s front porch and “yank[ ] the wires off the

other camera.” The surveillance video was published to the jury.

¶7 On April 7, 2022, while the direct appeal was pending, the defendant filed a pro se petition

for relief from judgment, pursuant to section 2-1401 of the Code. In that petition, the defendant

claimed that the State had withheld video clips that had been recorded on Henry’s surveillance

cameras, in violation of Brady v. Maryland, 373 U.S. 83 (1963) (due process requires the

prosecution to disclose evidence favorable to the accused and material to guilt or punishment).

These clips, the defendant alleged, show that “a lady” had entered and exited Henry’s trailer

between 7:15 a.m. and 7:57 a.m. on the day of the fire. According to the defendant, “[t]his lady

should have been a potential suspect and interviewed as a suspect,” but she was not interviewed

3 by the police, the fire department, or the prosecution, nor was the defense informed about her prior

to trial. The section 2-1401 petition was supported by an affidavit from Timmothy Ladd, the

defendant’s brother. In the affidavit, Timmothy Ladd stated that between June and August 2021,

he had spoken with Tosha Henry, and that Henry had told him “that a neighbor lady from across

the street was the person who had come by her house the morning (October 5, 2018 at

approximately 7:15 am) of the trailer burning down.” Timmothy Ladd did not know the lady’s

name, but stated that Henry seemed familiar with her.

¶8 Neither the defendant’s petition nor his brother’s affidavit indicated how the defendant

knew that the unnamed lady had been captured on video. Neither described actually viewing the

alleged video clips. Neither described how much time the lady had spent in Henry’s trailer.

Neither described any evidence indicating that the lady had started the fire, whether accidentally

or intentionally.

¶9 The State did not file an answer, or otherwise respond, to the defendant’s section 2-1401

petition for relief from judgment. In effect, the State admitted all of the petition’s well-pleaded

facts. See People v. Vincent, 226 Ill. 2d 1, 9-10 (2007) (“the State’s failure to answer the [section

2-1401] petition constituted an admission of all well-pleaded facts [citation] and rendered [the]

petition ripe for adjudication”).

¶ 10 On June 28, 2022, the circuit court sua sponte dismissed the petition for relief from

judgment, with prejudice. “Even if the allegations of the petition are all true,” the court wrote,

“the petitioner has not alleged how or whether such facts would likely change the outcome of the

jury’s verdict and the Court’s final judgment.” The defendant perfected this appeal from the

dismissal order.

4 ¶ 11 ANALYSIS

¶ 12 This appeal is from the circuit court’s sua sponte dismissal of the defendant’s petition for

relief from judgment under section 2-1401 of the Code. As previously mentioned, OSAD has filed

with this court a Finley motion to withdraw as counsel on the ground that this appeal lacks merit,

along with an accompanying legal memorandum. In its memorandum, OSAD presents two

potential issues in this appeal: (1) whether the defendant’s allegation that a woman stopped by

Tosha Henry’s trailer on the morning of the fire entitles the defendant to relief under section 2-

1401, and (2) whether the circuit court, in dismissing the defendant’s section 2-1401 petition for

relief from judgment, complied with the applicable timing requirements. The defendant has not

filed a response of any kind. This court agrees with OSAD that this appeal lacks merit.

¶ 13 Section 2-1401 establishes a comprehensive statutory procedure to challenge a final

judgment when more than 30 days have elapsed since its entry. 735 ILCS 5/2-1401 (West 2022);

People v. Vincent, 226 Ill. 2d 1, 7 (2007). Petitions for relief from judgment must be filed not later

than two years after the entry of the order or judgment, excluding time that the defendant was

under legal disability or duress or the ground for relief was fraudulently concealed. 735 ILCS 5/2-

1401(c) (West 2022); People v. Caballero, 179 Ill. 2d 205, 210-11 (1997).

¶ 14 Section 2-1401 is intended to correct errors of fact, unknown to the petitioner and the court

at the time of the judgment, which would have prevented the rendition of the judgment had they

been known. People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003). To be entitled to relief under

section 2-1401, a petitioner must set forth specific factual allegations supporting each of the

following elements: (1) the existence of a meritorious defense or claim, (2) due diligence in

presenting this defense or claim to the circuit court in the original action, (3) due diligence in filing

the section 2-1401 petition. Id. at 565. “That is, in order to obtain relief under section 2-1401, the

5 defendant must show both a meritorious defense to the charges against him and due diligence in

presenting it.” Id. A contrast has been drawn between a section 2-1401 petition and a petition for

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)). “A

postconviction petition requires the court to decide whether the defendant’s constitutional rights

were violated at trial,” whereas a section 2-1401 petition “requires the court to determine whether

facts exist that were unknown to the court at the time of trial and would have prevented entry of

the judgment.” Pinkonsly, 207 Ill. 2d at 566. Section 2-1401 authorizes a circuit court “to vacate

or modify a final order or judgment in civil and criminal proceedings.” Warren County Soil &

Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Dismissal of a petition for relief

from judgment is reviewed de novo. Vincent, 226 Ill. 2d at 18.

¶ 15 OSAD’s first potential issue is whether the defendant’s allegation that a woman went to

Henry’s trailer on the morning of the fire entitles the defendant to relief under section 2-1401. In

his section 2-1401 petition, the defendant claimed that the State had withheld video evidence from

him, citing the United States Supreme Court’s landmark decision in Brady v. Maryland. However,

as OSAD notes in its memorandum of law in support of its Finley motion, “a Brady claim is

constitutional in nature, and petitions for relief from judgment are meant to correct factual errors.”

(Emphasis in original.) Therefore, the relevant question in this appeal, again quoting OSAD’s

memorandum, “is whether, assuming the truth of all well-pleaded facts set forth in [the

defendant’s] petition, judgment could have been entered against him if it had been known at trial

that Henry’s neighbor came by the house on the morning of the fire.”

¶ 16 The weakness of the defendant’s claim is evident. Even if the unseen video did, in fact,

show that a woman entered the trailer on the morning of the fire, there is no evidence that she

actually started the fire. Tosha Henry was away from her trailer for only about 10 minutes as she

6 walked her daughter to school. Apparently, the trailer was fine and normal when Henry began her

walk to the school. As she walked back to the trailer, she saw the defendant and another man

depart from the trailer and drive away. Moments later, she opened her front door and saw that

smoke permeated the interior. The window of opportunity to start the fire while Henry was away

was quite brief. Without evidence that the unnamed woman started the fire, there was nothing that

would have prevented judgment from being entered against the defendant.

¶ 17 The second issue raised by OSAD in its Finley memorandum is whether the circuit court

complied with timing requirements in dismissing the defendant’s section 2-1401 petition. Where

the State fails to answer a section 2-1401 petition within 30 days after the petition’s filing, that

failure constitutes the State’s admission to all of the petition’s well-pleaded facts, and the petition

becomes “ripe for adjudication” by the circuit court. People v. Laugharn, 233 Ill. 2d 318, 323

(2009). Here, the defendant filed his section 2-1401 petition on April 7, 2022, and the State did

not file an answer or any other pleading within 30 days after that date (or at any time thereafter).

On June 28, 2022—weeks after the 30 days had passed—the circuit court adjudicated the petition,

sua sponte dismissing it. Plainly, the court complied with the applicable time requirements.

¶ 18 CONCLUSION

¶ 19 The circuit court was right to dismiss the defendant’s section 2-1401 petition. The petition

did not present any facts that would have prevented entry of the judgment, and the court acted only

after the petition became ripe for adjudication. Any arguments to the contrary would have no

merit. Accordingly, OSAD’s motion for leave to withdraw as counsel is granted, and the judgment

of the circuit court is affirmed.

¶ 20 Motion granted; judgment affirmed.