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05/30/96 PEOPLE STATE ILLINOIS v. PAUL W. SCHAFF

May 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PAUL W. SCHAFF, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 89 CR 22611. Honorable Pamela Karahalios, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

Paul Schaff appeals a trial court dismissal of his petition for post-conviction relief without an evidentiary hearing. We affirm.

A jury convicted the defendant of criminal sexual assault and aggravated criminal sexual assault. This court affirmed the convictions on direct appeal. People v. Schaff, 248 Ill. App. 3d 547, 618 N.E.2d 566, 187 Ill. Dec. 975 (1993). The Illinois Supreme Court denied the defendant's petition for leave to appeal, and the United States Supreme Court denied his petition for certiorari ( Schaff v. Illinois 510 U.S. 1201, 127 L. Ed. 2d 667, 114 S. Ct. 1317 (1994).

The defendant then filed a petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122 (1994 West)). He alleged many errors which denied his rights under the United States and Illinois Constitutions. The trial court dismissed the petition.

Defendant appeals and seeks an evidentiary hearing.

The Post-Conviction Hearing Act, (725 ILCS 5/122 (West 1994)) is a remedy for substantial violations of constitutional rights at trial. People v. Owens, 129 Ill. 2d 303, 307, 544 N.E.2d 276, 135 Ill. Dec. 780 (1989). Post-conviction proceedings are limited to matters which have not been and which could not have been previously adjudicated. People v. Ramirez, 162 Ill. 2d 235, 239, 642 N.E.2d 1224, 205 Ill. Dec. 107 (1994).

A defendant is entitled to an evidentiary hearing on a post-conviction petition only if he makes a substantial showing that his constitutional rights were violated. Owens, 129 Ill. 2d at 308, 544 N.E.2d 276. The trial court may dismiss the petition if the court determines it is "frivolous" or "patently without merit." 725 ILCS 5/122-2.1(a) (West 1994). We will not reverse a dismissal unless it is manifestly erroneous. People v. Griffin, 109 Ill. 2d 293, 303, 487 N.E.2d 599, 93 Ill. Dec. 774 (1985).

Defendant first alleges in his petition that his conviction is the result of false testimony. He contends the victim fabricated a story of sexual abuse by the defendant because the victim's parents wanted "to cause trouble" for the defendant. To support this allegation, defendant submitted an affidavit by John Carmickle, a 13 year old friend of the victim. Carmickle states in the affidavit that the victim "told [him] that Paul Schaff never touched him" and "also heard from some other friends of [the victim] that the reason [the victim] lied about Paul Schaff having touched him was because [the victim's] mother wanted to get Mr. Schaff in trouble."

The use of testimony alleged to be false is addressed in People v. Brown, 214 Ill. Dec. 257, 169 Ill. 2d 94, 660 N.E.2d 964 (1995). Our supreme court considered whether a constitutional question is raised when a post-conviction petition alleges that a conviction is based on the State's use of false testimony. The court held the petition must allege that the State knowingly used the false testimony. Absent the allegation of knowing use, no constitutional violation is raised.

The alleged recantation of the victim which defendant uses here to support his claim of perjury happened after trial. Defendant does not allege that the State knowingly introduced false testimony of the victim. Based upon Brown, we find the trial court correctly dismissed that part of the post-conviction petition which alleged false testimony by the victim.

Defendant also alleges that the victim's mother testified falsely about the date she first contacted the children's advocacy center. The victim's mother testified at trial that she watched a "broadcast on television about symptoms for sexual abuse" on July 31, 1989. She then called the Hanover Park Police Department because she believed her son exhibited some of the symptoms described in the program. The police referred her to the children's advocacy center. She testified that she called the center on August 1, 1989, and brought her son to the center the same day.

Defendant alleges that "intake" records from the center show the victim's mother contacted the center on July 28, 1989, not August 1, 1989. He then alleges that the State acknowledged, at a side bar conference, that if knew of the records. Defendant alleges: "As a result of the State's knowing use of this ...


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