Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Adams County,
the Hon. Richard Mills, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from the judgment of the appellate court (49 Ill. App.3d 787), affirming the trial court's dismissal of a petition filed by defendant, Lavon Logan, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72).
In September of 1972, defendant was tried by a jury for the armed robbery of a theater in Quincy. In its case in chief, the prosecution presented three witnesses. The cashier on duty at the theater described the details of the robbery but could not identify defendant as the robber. Another witness, who had known the defendant for 14 years, observed him running out of an alley near the theater, carrying a gun. He observed defendant for about one minute, after which time defendant disappeared near an old church building on Seventh Street. The third witness, Ronald Holt, lived on Seventh Street directly north of the church building. He testified that defendant came to his house on the night in question, told him that he had just "hit a place," and asked Holt if he could hide his gun in the apartment. Holt refused, at which time defendant and defendant's brother, who had come into the apartment a few minutes after the defendant, left through a back door.
The jury found defendant guilty of armed robbery on September 12, 1972. Defendant filed a timely post-trial motion, alleging numerous errors, in which he requested that his conviction be set aside or in the alternative that he be granted a new trial. The motion was heard and denied on October 5, 1972.
On October 17, 1972, defendant filed a pro se motion to amend and supplement his previous post-trial motion on the basis of newly discovered evidence that Ronald Holt had perjured himself at defendant's trial. The motion was filed beyond the 30-day limit prescribed by law (Ill. Rev. Stat. 1973, ch. 38, par. 116-1), but, because of the nature of the allegations in the petition, an evidentiary hearing was held on the matter. At the hearing, several witnesses testified that Holt had come to the jail and yelled to the jail window from his car. Logan testified that Holt, who was on probation at the time, said that he had been to Logan's attorney's office and that he would testify that he had been pressured into lying at his trial. Evidence adduced from several other witnesses seemed to support defendant's allegations about Holt's statement, although Logan's attorney stated that Holt had been to his office to discuss his (Holt's) probation, but he had no knowledge of any other attempts by Holt to contact his office. Holt did not testify at the hearing, apparently because he was in California at the time. The court found that perjury had not been proved, and denied defendant's motion for post-trial relief.
The perjury issue was included in defendant's appeal from his robbery conviction to the Fourth District Appellate Court. The court affirmed the conviction in its entirety. (People v. Logan (1974), 24 Ill. App.3d 678.) Regarding the perjury issue, the court noted that the "so-called newly discovered evidence was not of such a conclusive character that it would probably change the result if a new trial was granted, nor does it appear that it was discovered after the trial, nor does it appear that it might not have been discovered if true before the trial, and lastly it goes only to the credibility of a witness rather than to the question of the innocence or guilt of this defendant." 24 Ill. App.3d 678 (abstract).
In August 1974 defendant filed a petition for a post-conviction hearing raising, inter alia, the issue of Holt's perjury. The petition was amended in October 1974. The amended petition alleged that defendant's counsel, John T. Inghram IV, had been in touch with Holt by phone, and that Holt had admitted that he had lied at defendant's trial. An affidavit, sworn to by Inghram, was attached to the amended petition, in which Inghram alleged that Holt had told him that he could not remember if defendant had been to his apartment on the night in question and that defendant had not said he had "hit a place," nor had he seen defendant with a gun. Defendant alleged that Holt was residing in Burbank, California, and included a request that the trial court issue a certificate to secure his attendance at a post-conviction hearing under the Uniform Act to secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (the Uniform Act). See Ill. Rev. Stat. 1973, ch. 38, par. 156-3.
A hearing on the State's motion to dismiss the petition was held on November 1, 1974. The judge stated that the testimony of Holt was a significant part of the State's case and, if proved, would necessitate the granting of a new trial. He ultimately decided, however, that the representations presented by defendant were not enough to prove the perjury and were not sufficient to compel the attendance of Holt under the Uniform Act, and he dismissed the petition without a hearing. In this connection, he gave the defendant 120 days to amend the petition by presenting more conclusive evidence of perjury, and indicated that an affidavit from Holt, or a phone conversation in which it could be clearly shown that Holt was the party talking, or anything else in the way of a direct communication to the court, would be acceptable. The judge also informed the defendant that, if necessary, he would grant extensions beyond the 120-day limit prescribed by his prospective order. It should be noted that section 122-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 122-5) authorizes the court, before the entry of judgment on the post-conviction petition, to grant leave to withdraw the petition.
Defendant did not amend the post-conviction petition, nor did he seek any extensions to the 120-day period. Also, he did not ask leave to withdraw the petition. The petition was dismissed and defendant appealed from the court's dismissal of the post-conviction petition. In his appeal, he raised only the validity of his sentence, and failed to include any issue regarding Holt's perjury. The appellate court affirmed the sentence, with one justice dissenting. People v. Logan (1976), 39 Ill. App.3d 656.
On November 17, 1975, defendant wrote a letter to the trial judge. The letter, which reminded the judge that he had dismissed the post-conviction petition because no direct evidence was available regarding Holt's perjury, was sent along with a letter from Holt. Holt's letter was addressed to defendant's recently appointed counsel, Richard Cunningham, and was dated July 30, 1975. Holt's letter indicated that when he first talked to police investigators, a year after the robbery, he was under a great deal of emotional strain due to the fact that his sister was dying of cancer. He stated that at the time of his discussion with the police he had just had a car accident and had been taking drugs. He further stated that he had been drinking heavily "and the police knew it so they said if [he] didn't tell them that they knew some things on [him]." The letter concluded, "So I said I seen a gun and he said I hit a place just to get out of there."
Holt's letter was originally sent to attorney Cunningham in response to a request from defendant's former attorney, John Inghram IV, that Holt sign an affidavit stating that he had perjured himself at defendant's trial. When Holt had discussed the matter with Inghram by phone in 1974, he had expressed concern over the possibility of having his probation revoked, as well as being subject to criminal charges for perjury in this State. Holt did not hear from Inghram after this, but he received the affidavit and request for his signature sometime in the spring of 1975. Upon receiving the affidavit, he wrote to defendant's new counsel in order to find out what could be done to him if he signed it.
While his appeal from the dismissal of his amended post-conviction petition was pending, defendant filed pro se an action pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). The gist of the section 72 petition, filed on February 6, 1976, was that the letter from Holt constituted new evidence of perjury. The petition alleged that the perjured testimony was induced by threats on behalf of the prosecution and that the prosecution had knowingly and willfully used such testimony in contravention of defendant's right to due process of law. The petition, which was supplemented by a copy of the aforementioned letter from Holt, included a request for an evidentiary hearing in order that the defendant would have an opportunity to prove the alleged perjury.
The trial court dismissed the section 72 petition without a hearing on the ground that it was not filed within 2 years of the judgment under attack as prescribed by the statute (Ill. Rev. Stat. 1975, ch. 110, par 72). The appellate court affirmed the trial court's judgment. Shortly after the decision was filed, defendant received an affidavit signed by Holt in which Holt stated that his perjured testimony at the trial was knowingly and purposefully used by the State. ...