APPEAL from the Circuit Court of Wayne County; the Hon. HARRY
L. ZIEGLER, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Clarence Eugene Wilson, hereinafter referred to as the defendant, was found guilty by a jury of murder and attempt to commit burglary in the Circuit Court of Wayne County. He was sentenced to serve consecutive terms of 50 to 75 years and 10 to 12 years. The defendant appealed this conviction directly to the Illinois Supreme Court and the conviction was affirmed. People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626.
The defendant has sought post-conviction relief by petition filed in the Wayne County Circuit Court. The defendant alleges that his constitutional rights had been violated in that the State had knowingly used perjured testimony at his trial. A hearing was held on June 12, 1972, in the circuit court on that single issue. At the conclusion of the evidence, counsel for the petitioner argued in behalf of the petitioner and cited numerous cases. The State responded to the argument and at the conclusion of the arguments the State asked leave to court to submit a brief in response to the cases cited by the petitioner's counsel. Without objection by the defendant the court granted the State's request.
On June 20, 1972, the State filed the brief and also on June 20, 1972, the petitioner's retained counsel withdrew. The retained counsel did, however, file a "reply" brief on July 28, 1972.
The defendant, on July 11, 1972, filed pro se what he called "First Amended Post-Conviction Petition", which raised three new issues for review. The State filed a motion to dismiss this "First Amended Post-Conviction Petition" which was granted subsequent to July 14, 1972.
On July 14, 1972, the court entered its order denying the relief sought in the original petition. It is from this denial of relief that the defendant has brought this appeal. The Illinois Public Defender has been appointed to assist the defendant.
The defendant now presents to this court five issues for review. They shall be discussed in the reverse order presented.
• 1 Did the court err in not ruling on defendant's "First Amended Post-Conviction Petition" filed July 11, 1972, before denying defendant's original petition on the 14th of July, 1972? The defendant states in his brief that he retained counsel to present six issues on post-conviction but counsel only presented one issue, that of the perjured testimony, at the post-conviction hearing. Thus the amended petition contained issues that could have been presented in the original petition. The defendant has not cited any authority for his contention of error other than to direct our attention to the Post-Conviction Hearing Act. The denial of the defendant's "First Amended Post-Conviction Petition" does not go beyond the sound discretion of the trial court.
• 2 The defendant states that the court erred at the post-conviction hearing in accepting argument by the State involving a count in the defendant's indictment that had been nolle-prossed at the trial. The argument was made without objection by the defendant. The failure to object can and is considered to be a waiver of the objection. People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389, cert. denied, 369 U.S. 808, 7 L.Ed.2d 555, 82 S.Ct. 651.
"In post-conviction proceedings the burden is upon the petitioner to demonstrate that he has been denied his constitutional rights. (People v. Smith, 45 Ill.2d 399.) To facilitate such a showing section 122-6 (Ill. Rev. Stat. 1969, ch. 38, par. 122-6) permits the court wide latitude in hearing evidence either by affidavits, depositions or oral testimony. Where witnesses are presented, we have held that the credibility and weight to be given the testimony is a matter to be determined by the trial judge and that determination is not to be questioned unless it appears to be manifestly erroneous. People v. Logue, 45 Ill.2d 170, 174; People v. Dowmen, 45 Ill.2d 197, 201." People v. Watson, 50 Ill.2d 234, 278 N.E.2d 79.
The next contention of the defendant is that the court erred in permitting the State to file a brief eight days after the hearing.
• 3 The allowing of the filing of the brief by the State was within the discretion of the trial court and was allowed without objection of the defendant. People v. Burage, supra. People v. Watson, supra.
Next, the defendant asserts that the court erred in admitting evidence, not relevant to the post-conviction petition, over objection of defendant. The defendant contends that the evidence was a retrial of the defendant's guilt or innocence.
• 4 The record indicates that the evidence admitted went to the credibility of the witnesses and was not a retrial of the defendant's guilt or innocence. Evidence that goes to the credibility of the witnesses, the evidence received, is within the sound discretion of the trial court. People v. Wakat, 415 Ill. 610, 114 N.E.2d 706.
The post-conviction hearing was held in the circuit court to determine if the defendant's constitutional rights had been violated by the State knowingly using perjured testimony. The defendant was originally convicted in part because of the testimony of two accomplices. The two testified at the trial that they had not been offered any deal or given any promises for leniency to testify. They also stated that their stories had not been rehearsed before the trial and had not conversed with each other prior to trial. The evidence presented at the post-conviction hearing by the testimony of the same two accomplices was that they had prevaricated about being offered a deal and they had lied about not rehearsing their stories prior ...