{ "id": 5262373, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE E. MACKINS, Defendant-Appellant", "name_abbreviation": "People v. Mackins", "decision_date": "1991-12-17", "docket_number": "No. 2\u201490\u20140188", "first_page": "1063", "last_page": "1068", "citations": [ { "type": "official", "cite": "222 Ill. App. 3d 1063" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "36 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378661 ], "year": 1968, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0286-01" ] }, { "cite": "129 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567220 ], "weight": 3, "pin_cites": [ { "page": "280" }, { "page": "280-81" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0265-01" ] }, { "cite": "122 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549473 ], "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0064-01" ] }, { "cite": "193 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2574460 ], "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0075-01" ] }, { "cite": "22 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788043 ], "weight": 2, "pin_cites": [ { "page": "70" }, { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0068-01" ] }, { "cite": "74 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994719 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "316" }, { "page": "316-17" }, { "page": "316-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0286-01" ] }, { "cite": "48 Ill. 2d 295", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905125 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "298" }, { "page": "298" }, { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0295-01" ] }, { "cite": "142 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236877 ], "year": 1971, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0204-01" ] }, { "cite": "115 Ill. 2d 238", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179231 ], "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0238-01" ] }, { "cite": "188 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2691861 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "391" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0387-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "year": 1989, "pin_cites": [ { "page": "220-21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10829, "ocr_confidence": 0.784, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3560327262323016 }, "sha256": "7bf8352308b79d15911302e9349c13eddf8d0100e0f9cf185f8e3b3741fa50ab", "simhash": "1:bf10049f23c89e7c", "word_count": 1765 }, "last_updated": "2023-07-14T18:31:20.627609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE E. MACKINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nDefendant, Wayne E. Mackins, appeals from an order of the circuit court of Lake County which dismissed his petition for relief pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). Defendant raises two issues on appeal: (1) whether the trial court erred in dismissing the petition without a hearing; and (2) whether, alternatively, the petition should have been considered a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.) which was adequate to require the trial court to appoint counsel for defendant. We affirm.\nDefendant was found guilty following a bench trial of the offense of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 \u2014 3(a)) and was sentenced to a term of 15 years\u2019 imprisonment. This court affirmed defendant\u2019s conviction on direct appeal. (People v. Mackins (2d Dist. Sept. 26, 1990), No. 2 \u2014 89\u20140300 (unpublished order under Supreme Court Rule 23).) In his direct appeal, defendant argued that the State failed to prove beyond a reasonable doubt that he had the requisite intent to commit residential burglary. In our order, we extensively discussed the evidence presented at trial, including the testimony of three police officers, and concluded that a reasonable inference from the facts presented was that defendant made an unauthorized entry into a residence with the intent to commit a theft therein.\nDefendant had testified at trial that he entered the residence by reaching in and unlocking the back door and pushing a refrigerator away from the doorway. He stated that he entered the residence because he wanted to sleep. He thought it was his ex-girlfriend\u2019s mother\u2019s house, which he had visited on two occasions more than six months prior to the occurrence. The police officers testified that they saw defendant moving about in the house and found the mattress and box spring askew in the bedroom of the house.\nOn January 17, 1990, defendant, pro se, filed a petition for post-judgment relief pursuant to section 2 \u2014 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401). He also filed a motion for the appointment of counsel. In the petition, defendant alleged that the police officers who testified at trial committed perjury. Defendant pointed out, in a rambling manner, that there were inconsistencies between the officers\u2019 trial testimony and a police report and between the trial testimony and the testimony of Richard McKissick, the police officer who testified at defendant\u2019s preliminary hearing. At the preliminary hearing, McKissick testified that he went to the scene of the burglary sometime after four other officers had responded to a report of a burglary in progress. McKissick essentially related his recollection of what one of the other officers told him about the events after the officers responded to the call. McKissick did not testify at trial.\nDefendant also detailed some inconsistencies in the trial testimony of the officers. Defendant observed that there were inconsistencies in the testimony regarding which light was on in the residence when the officers arrived and whether Officer Brown was involved in investigating the premises. In addition, defendant generally alleged that the police officers\u2019 testimony was choreographed and \u201ccoached and led on by the State.\u201d Defendant had earlier filed two affidavits in which he stated that McKissick and the three officers who testified at trial committed perjury and subornation of perjury.\nA hearing was held regarding defendant\u2019s petition on January 30, 1990. An assistant public defender was present at the hearing but stated that no counsel had been appointed for defendant. The trial judge stated that he' found that the petition was frivolous and patently without merit. An order was entered which dismissed the petition. This timely appeal followed.\nOn appeal, defendant first argues that the trial court considered defendant\u2019s petition to be a post-conviction petition which could be dismissed without a hearing. (See Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 2.1(a).) Defendant contends that a section 2 \u2014 1401 petition, however, is the proper procedure for obtaining relief from a judgment based on perjured testimony and could not be dismissed without a hearing.\nIn order to be entitled to post-judgment relief under section 2 \u2014 1401, a petitioner \u201cmust affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 \u2014 1401 petition for relief.\u201d Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21; see also People v. Smith (1989), 188 Ill. App. 3d 387, 391.) The petition must establish adequate grounds for relief and must show that the party seeking the relief was not negligent in failing to raise that ground at trial. People v. Sanchez (1986), 115 Ill. 2d 238, 284; Smith, 188 Ill. App. 3d at 392.\nThe petition filed by defendant failed to meet these standards. The allegations made were not sufficient to establish that perjury was committed at trial. Also, defendant did not allege anything in the petition that was not known at the time of trial. We conclude that the petition was therefore properly dismissed.\nDefendant is correct that section 2 \u2014 1401 \u201c \u2018provides a basis for obtaining relief from a judgment based upon perjured testimony.\u2019 \u201d (People v. Steidl (1991), 142 Ill. 2d 204, 253, quoting People v. Jennings (1971), 48 Ill. 2d 295, 298.) However, the cases relied upon by defendant, People v. Berland (1978), 74 Ill. 2d 286, 316, People v. Jennings (1971), 48 Ill. 2d 295, 298, and People v. Lewis (1961), 22 Ill. 2d 68, 70, do not support defendant\u2019s position that such a petition cannot be dismissed without an evidentiary hearing. In fact, in all three cases cited, the court held that the petition or petitions at issue were properly dismissed. Berland, 74 Ill. 2d at 316-17; Jennings, 48 Ill. 2d at 300; Lewis, 22 Ill. 2d at 71-72.\nIn Berland, the court held that the defendant\u2019s petition was properly dismissed where the petition did not support a charge of perjury and therefore offered no basis for an evidentiary hearing. The court noted that discrepancies in the description of the defendant and variations in what different witnesses reported they saw do not indicate perjury. Berland, 74 Ill. 2d at 316-17.\nThe same is obviously true here. We note that the inconsistencies pointed out by defendant relate only to minor details. \u201cMere inconsistencies in testimony do not establish perjury\u201d (People v. Amos (1990), 204 Ill. App. 3d 75, 85) and go only to the weight and credibility of the evidence (People v. Tyner (1968), 40 Ill. 2d 1, 3; People v. Moore (1990), 199 Ill. App. 3d 747, 766; People v. Foster (1989), 190 Ill. App. 3d 1018, 1030). We also note that the discrepancies are insignificant considering that defendant admitted that he entered and was in the house. Absent inconsistent circumstances, an inference of an intent to commit theft which will sustain a conviction of burglary arises when there is evidence of unlawful breaking and entry into a building where a theft could occur. People v. Johnson (1963), 28 Ill. 2d 441, 443; People v. Coleman (1990), 203 Ill. App. 3d 83, 89; In re P.A.G. (1990), 193 Ill. App. 3d 601, 603.\nFurther, McKissick, who testified at the preliminary hearing, was testifying regarding his recollection of a report which another officer gave to him. The fact that this testimony was not exactly the same as that presented at trial is not surprising and does not show that perjury was committed.\nDefendant next argues, in the alternative, that his petition should have been considered a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.) as it \u201cunequivocally raised the inference that his original trial attorney was ineffective.\u201d He contends that this is true because his trial counsel \u201cfailed to impeach the police officers.\u201d He argues that the petition, although inartfully drawn, was sufficient to require the appointment of counsel and a hearing. Again, we disagree.\nThe petition clearly stated that it was brought pursuant to section 2 \u2014 1401 of the Code and nowhere alleged ineffective assistance of counsel. Defendant has cited no authority for his argument that the petition should be considered an ineffective assistance of counsel claim. It is obvious that a court is not required to \u201cinfer\u201d allegations that are not made. We also note that the allegations in the petition totally fail to establish any ineffective assistance of counsel. Furthermore, even if the petition was considered a petition for post-conviction relief, we conclude that it was properly dismissed.\nA post-conviction petitioner is entitled to have counsel represent him regarding the petition once he sets out allegations demonstrating a meritorious constitutional claim. (See People v. Porter (1988), 122 Ill. 2d 64, 74.) Counsel need not be appointed and a hearing need not be held if the claim is frivolous and patently without merit. See Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 2.1(a)(2).\nA post-conviction petition, in unusual circumstances, may be used to remedy a claim of perjury. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 280.) The court in Del Vecchio determined that a claim of perjury does not \u201crise to a constitutional violation\u201d requiring an evidentiary hearing where it is based solely on inconsistencies or improbabilities in the testimony. (Del Vecchio, 129 Ill. 2d at 280-81; see also People v. Doherty (1966), 36 Ill. 2d 286, 289.) As we discussed previously, \u201csuch matters concern the weight and credibility of the evidence and go to the issue of guilt or innocence.\u201d Del Vecchio, 129 Ill. 2d at 280; see also People v. Tyner (1968), 40 Ill. 2d 1, 3.\nIn this cause, defendant alleged only minor inconsistencies in the police officers\u2019 testimony. The petition, if considered a post-conviction petition, was frivolous and patently without merit and was properly dismissed.\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nUNVERZAGT and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE E. MACKINS, Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140188\nOpinion filed December 17,1991.\nG. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1063-01", "first_page_order": 1083, "last_page_order": 1088 }