APPEAL from the Circuit Court of Knox County; the Hon. ALBERT
SCOTT, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 31, 1977.
Can a recantation be recanted?
Can an "eyeball" witness twice repudiate, cancel out the recanted testimony by yet another retraction, and thus destroy his veracity as a means of disproving his original convicting evidence?
At the trial of Ronald Johnson, Earl Stewart testified that on July 18, 1973, he saw Isaac Johnson and the defendant at an establishment known as the Scoreboard. Isaac, who is the defendant's brother, asked Stewart if he wanted to buy some LSD. When Stewart asked to see the merchandise, Isaac directed him to the defendant. The defendant showed Stewart a white piece of paper with 30 purple dots on it. Stewart then left the Scoreboard, went to the police station and talked with Detective Spivey. After searching him, the detective gave him $30 to buy the LSD. Upon returning to the Scoreboard, Stewart in turn gave the money to Isaac. The defendant then gave Stewart 15 dots of LSD outside of and behind the Scoreboard as Detective Spivey and Sergeant Sergeant, who had followed Stewart, looked on from a distance.
On June 19, 1974, a jury found Ronald Johnson guilty of delivery of less than 30 grams of a substance containing lysergic acid. The defendant filed a motion for a new trial on July 19, 1974, alleging newly discovered evidence consisting of a statement by one Gary Reading. Reading stated Earl Stewart told him in a bar on the evening of June 19, 1974, that he had made a deal with the police allowing him to stay out of jail if he testified against Ronald Johnson, although he never saw any drugs change hands on the day in question. After a hearing, the motion for a new trial was denied. No direct appeal was taken.
Then on February 19, 1975, the defendant filed a petition for post-conviction relief. In the petition, the defendant alleged his conviction resulted from the perjured testimony of Earl Stewart, induced by threats and promises of the police. An affidavit, given by Stewart on December 2, 1974, in support of the petition, stated Detective Spivey threatened to shoot him if he did not cooperate, and also threatened to have him put in jail for 20 years if he did not testify against Ronald Johnson.
In its answer and motion to dismiss the post-conviction petition, the State claimed that on December 8, 1974, Stewart informed the police that he had told defendant's attorney that his trial testimony had been a lie. Stewart stated that since he had come back to town he had been in a fight, or beaten up, every weekend. While in a hospital with a broken rib suffered in one of these altercations, the defendant's brother, Isaac Johnson, told Stewart he would have his boys "lay off" if he would tell defendant's attorney he had lied at the trial. Stewart reiterated to the assistant State's Attorney and later the defendant's attorney that his recantation of his trial testimony was induced by physical and mental distress and fear of Isaac Johnson. He stated that the testimony he gave at the trial was true.
After hearing the arguments of counsel and taking the matter under consideration, the judge dismissed the petition for post-conviction hearing. The defendant claims that the dismissal of the petition alleging knowing use of perjured testimony without an evidentiary hearing was erroneous.
Such a practice if true would simply be fundamentally unfair, and violative of the rawest of due process. The Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, pars. 122-1, 122-7) provides remedy for an improperly convicted defendant. (People v. Martin (1970), 46 Ill.2d 565, 264 N.E.2d 147.) Upon the filing of the petition alleging a substantial violation of petitioner's constitutional rights, the State may answer or file a motion to dismiss the petition. Ill. Rev. Stat. 1975, ch. 38, par. 122-5.
• 1 Now, it is the function of the pleadings to determine whether the petitioner is entitled to an evidentiary hearing. (People v. Clements (1967), 38 Ill.2d 213, 230 N.E.2d 185; People v. Airmers (1966) 34 Ill.2d 222, 215 N.E.2d 225.) When the claim creates conflicting representations beyond the record, evidence should be taken. (People v. Sigafus (1968), 39 Ill.2d 68, 233 N.E.2d 386.) However, the petitioner is not entitled to a hearing as a matter of right. The orderly and expeditious disposition of these petitions necessitates the dismissal of non-meritorious ones. (People v. Farley (1976), 37 Ill. App.3d 178, 345 N.E.2d 724.) For the purposes of the motion to dismiss, the petition is basically taken as true. The motion only questions the sufficiency of the allegations. (People v. Wilson (1968), 39 Ill.2d 275, 235 N.E.2d 561; People v. Funches (1972), 9 Ill. App.3d 372, 292 N.E.2d 187.) The pleadings are generally not intended to resolve constitutional claims.
• 2 Although the judge must not weigh the credibility of the constitutional claim in ruling on the motion to dismiss, he is given wide discretion as to the evidence he receives in ruling on the petition. In People v. Humphrey (1970), 46 Ill.2d 88, 92, 263 N.E.2d 77, 79, the supreme court held that the trial judge did not abuse his discretion "in ruling on the allegations of the petition based on the petition, ...