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January 24, 2001

No. 3--99--0924

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

JUSTICE HOLDRIDGE delivered the opinion of the court:

Michael Cheeks was convicted of first degree murder and home invasion (720 ILCS 5/9--1(a)(1), 12--11(a)(2) (West1996)) in the Will County circuit court. He subsequently filed a pro se post-conviction petition claiming, inter alia, that histrial attorney was ineffective for failing to reveal perjury by the State's key witness. The court summarily dismissed thepetition.

Cheeks now asserts that his post-conviction petition should have been considered as raising a perjury claim under section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 1998)). We agree and remand for suchconsideration.

BACKGROUND

The evidence presented at Cheeks' bench trial showed that he and Maria Brown lived together at a residence leased byBrown. In the early morning hours of September 23, 1996, Cheeks entered the residence and found Brown with anotherman, Derrick Peterson. The State offered evidence that Cheeks entered through a kitchen window. A struggle ultimatelyensued in which he fatally stabbed Peterson.

Brown testified that Cheeks was the father of one of her children. She said Cheeks moved out of the residence onAugust 30, 1996, at her request. However, he "moved himself back into the house" about a week later. According toBrown, she did not give Cheeks permission to return, and she "consider[ed] him not living at [the] house" as of August 30. Despite that testimony, she acknowledged that she made no effort to have him removed from the residence after hereturned.

On cross-examination, Brown was questioned about a letter she wrote to Cheeks before his trial. In the letter, she asked,"Why did you come home?" and stated: "I must make you pay for what you did when I take the stand." She also stated:"What the jury is going to think of you when I leave the stand is that you deserve life, so good luck for nothing."

In his post-conviction petition, Cheeks identified several alleged errors and asserted that they showed his trial attorney'sineffectiveness. For instance, he alleged that his home invasion conviction was improper because he lived in the home hesupposedly invaded. He also alleged that the primary basis for his home invasion conviction was Brown's false testimonythat he did not live with her. He attached copies of two letters he claimed to have received from Brown after his trial. Thefirst letter read: "[W]ho knows maybe if I had told the truth about you living [there] you wouldn't have so much time, but Iseen a way to get you out of my life and I took it." The second letter read: "[O]h and no hard feelings about you not living[there] you see I wanted you to go to jail and if I had actually let someone know that you was living [there] you may havenot went."

Cheeks did not assert that the State knowingly used perjured testimony from Brown. He did request that counsel beappointed to assist him. Without acting on that request, the circuit court dismissed his petition as patently without merit,noting that it did not raise a constitutional claim upon which post-conviction relief could be granted.

In this appeal, Cheeks claims that the court should have considered his post-conviction petition as raising a perjury claimunder section 2--1401 of the Code.

ANALYSIS

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1998)) provides a remedy for defendantswhose convictions are tainted by a substantial denial of their constitutional rights. 725 ILCS 5/122--1(a) (West 1998). Since the Act requires a constitutional question, a perjury claim made without an assertion that the State knowingly usedthe perjured testimony cannot invoke post-conviction relief. People v. Brown, 169 Ill. 2d 94, 660 N.E.2d 964 (1995)(noting that constitutional rights are not implicated without State subornation of the perjury). However, this fact does noteliminate hope of a remedy for defendants who make such claims. Section 2--1401 of the Code provides a means ofobtaining relief from judgments that are based on false testimony (People v. Steidl, 142 Ill. 2d 204, 568 N.E.2d 837 (1991))without proof that the State knowingly used the testimony (Brown, 169 Ill. 2d 94, 660 N.E.2d 964).

In Brown, the circuit court summarily dismissed the defendant's pro se post-conviction petition which alleged that one ofthe State's witnesses committed perjury. The defendant did not assert that the State knowingly used the perjured testimony. Thus, our supreme court concluded that his petition did not warrant post-conviction relief and affirmed the dismissal. Thedefendant also claimed that the circuit court should have considered his perjury claim under section 2--1401. Althoughnoting that section 2--1401 provided a remedy, the supreme court deemed the defendant's claim as waived because heraised it for the first time in his reply brief. See 145 Ill. 2d R. 341(e)(7). Three justices dissented, contending that "[a]t aminimum, the circuit court should have treated the petition as having been brought under section 2--1401." Brown, 169 Ill.2d at 109, 660 N.E.2d at 971 (Harrison, J., dissenting).

In the instant case, Cheeks' remedy for Maria Brown's alleged false testimony clearly lies under section 2--1401. He doesnot have the waiver problem presented in Brown because he asserted in his initial brief that his post-conviction perjuryclaim should have been considered under section 2--1401. As Justice Harrison noted in Brown, we note that "[a]lthough[Cheeks] did not expressly invoke [section 2--1401] in the circuit court, he was proceeding pro se and was not afforded theassistance of counsel." Brown, 169 Ill. 2d at 109, 660 N.E.2d at 971 (Harrison, J., dissenting). We believe it would beinappropriate to deny Cheeks an opportunity to pursue the applicable remedy merely because he did not understand the lawwell enough to bring his claim under the Code rather than the Act. Accordingly, we remand for consideration of his perjuryclaim under section 2--1401 of the Code.

We realize that Cheeks drafted his post-conviction petition in terms of ineffective assistance of counsel. However, that factdoes not require us to divine a perjury claim from his allegations. The petition clearly reflects his assertion that he wouldnot have been convicted of home invasion if Maria Brown had not lied about him living in the home he supposedlyinvaded.

CONCLUSION

For the foregoing reasons, the judgment of the Will County circuit court is reversed and this cause is remanded forconsideration of Cheeks' perjury claim under section 2--1401 of the Code.

Reversed and remanded with directions.

SLATER and LYTTON, JJ., concur.