The opinion of the court was delivered by: Presiding Justice Garman
Appeal from Circuit Court of Macon County No. 93CF266
Defendant James A. Beard was convicted of first degree murder and concealment of a homicidal death following a jury trial in the circuit court of Macon County. He was sentenced to a term of natural life in prison. This court affirmed the conviction and sentence (People v. Beard, 273 Ill. App. 3d 135, 652 N.E.2d 465 (1995)), and the supreme court declined to hear his appeal (People v. Beard, 164 Ill. 2d 568, 660 N.E.2d 1273 (1995)). On April 17, 1996, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)), which was dismissed by the circuit court on May 13, 1996, as frivolous and patently without merit. Defendant now appeals the denial of his post-conviction petition without an evidentiary hearing, arguing that he has made a substantial showing that he was deprived of his constitutional rights. Specifically, he argues that the State knowingly used perjured testimony by his former cellmate and that he was denied a fair trial because one juror gave untruthful answers during voir dire. We affirm in part and reverse in part and remand with directions.
"A proceeding brought under the Post-Conviction [Hearing] Act is a collateral attack on a judgment of conviction. The inquiry in a post- conviction petition is limited to allegations of constitutional violations that were not and could not have been raised previously. [Citation.] The petitioner is entitled to an evidentiary hearing only upon making a substantial showing that he suffered a substantial deprivation of constitutional rights. [Citation.] In making that determination, all well-pleaded facts in the petition and any accompanying affidavits are taken as true. [Citation.] The determi- nations of the trial court, however, will not be disturbed absent manifest error." People v. Steidl, 177 Ill. 2d 239, 249, 685 N.E.2d 1335, 1339-40 (1997).
ALLEGED USE OF PERJURED TESTIMONY BY THE STATE
In his petition, defendant stated that his constitutional rights were violated because the jury was not informed of the "deal" between the State and a "key witness," Anthony Robinson. The trial court, defense counsel, and the State are, according to defendant's petition, all responsible for this alleged violation. Specifically, he claims that Robinson received a sentence of probation for a pending burglary charge in return for his testimony against defendant and that Robinson lied under oath about this bargain. He argues that Robinson was not eligible for probation because of his prior burglary convictions and that this is sufficient evidence of a "deal" between Robinson and the prosecutor to create the gist of a constitutional claim.
The trial transcript reveals that, at the time he testified, Robinson was an inmate in the Macon County jail. He testified that he met defendant during a previous incarceration and they had several conversations, during which the defendant made several incriminating statements. On direct examination, Robinson stated that he did not expect to receive anything from the State in return for his testimony.
On cross-examination, Robinson testified that after learning a subpoena had been issued for him but delivered to his brother, he called the State's Attorney's office and told them he did not want to testify. He made an appointment to talk to the prosecutor on September 13, 1993, but did not keep the appointment. That night he was arrested for burglary. He denied that he was testifying in this case only because of the charges pending against him. He admitted he had two prior felony convictions. According to Robinson, he felt a duty to testify against defendant for two reasons: his mother told him the victim was a grandmother and he recalled that, when his sister was killed, someone testified against her accused killer.
In its order of dismissal, the circuit court made two findings of fact relevant to this claim. However, the circuit court's comments addressed only one aspect of defendant's claim--that his own attorneys "failed to have the State inform the jury of the deal they had made with its key witnesses." However, because defendant made this argument in his petition, but has abandoned it in his brief, we need not consider the issue. In any event, the circuit court correctly concluded that defense counsel's cross-examination of Robinson explored the possibility that he was testifying in return for favorable consideration on his pending criminal charge. If Robinson's testimony was untruthful, the fault does not lie with defense counsel.
We next turn to defendant's assertion that the State made knowing use of perjured testimony at his trial by failing "to inform the jury of the deal it had made" with the witness. The order of the circuit court dismissing defendant's petition does not specifically address this aspect of defendant's argument.
Before we address the merits of defendant's claim, we must address the State's argument that defendant has waived this issue on appeal because it is not the same issue raised in his petition. The State quotes the language of the Act ("[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived" (725 ILCS 5/122-3 (West 1996))) and cites the decision of this court in People v. Davison, 292 Ill. App. 3d 981, 686 N.E.2d 1231 (1997), in support of its waiver argument. In Davison, defendant contended for the first time on appeal that the information by which he was charged was deficient. Because he failed to raise this issue in his petition, we found it waived. Davison, 292 Ill. App. 3d at 987, 686 N.E.2d at 1235.
Defendant acknowledges that his petition did not specifically allege that the State's use of perjured testimony was knowing, but argues, as a pro se petitioner, that this court should afford him some leeway, citing our decision in People v. Dredge, 148 Ill. App. 3d 911, 500 N.E.2d 445 (1986). In Dredge, we concluded:
"[I]n order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. [Citation.] Requiring pro se petitioners to state their claims in greater detail than this would have the practical effect of depriving many such persons of their right of meaningful access to the courts." Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47.
In this case, the defendant alleged in his petition that Robinson lied under oath and the State did not inform the jury that Robinson "would receive probation" in return for his testimony. The import of this claim is clear--that the State made a deal with Robinson prior to his testifying and did not make any effort to correct his false testimony at trial. Defendant's failure to employ the precise term "knowing" in his petition does not constitute waiver. As we noted in Dredge, if a petition is not dismissed as frivolous or patently without merit, it moves to the second state of the adjudication process where counsel must be afforded the opportunity to amend the petition. ...