FOURTH DIVISION 

MARCH 13, 2003

JUSTICE HARTMAN delivered the opinion of the court:

Petitioner David Thurman appeals from an order of the circuit courtgranting the State's motion to dismiss his post-conviction petition. Onappeal, petitioner contends that he was denied a fair trial when one ofthe State's witnesses received leniency in exchange for his cooperationand the State failed to correct the witness' testimony to the contrary.

Following a bench trial, petitioner was found guilty of threecounts of first-degree murder, armed robbery, armed violence and twocounts of aggravated assault arising from the 1990 killing of GonzaloVega (the victim). The circuit court sentenced petitioner to naturallife in prison for first-degree murder, 30 years in prison for the armedrobbery and the armed violence convictions and three years for theaggravated assault convictions, to be served concurrently. Petitioner'sconvictions and sentences were affirmed on direct appeal. People v.Thurman, Nos. 1-92-1960 & 1-92-3312 cons. (1994) (unpublished orderunder Supreme Court Rule 23).

At trial, Pascual Alvarez, the victim's cousin, testified on behalfof the State on August 27, 1992. According to Alvarez, he and thevictim were drinking with eight or nine other men at a friend's house onthe evening of July 26, 1990. The victim, Alvarez, Mike Aguilar, MarkHernandez and Steven Lavin subsequently drove to a liquor store. Alvarez went into the liquor store while the victim crossed the streetand went to cash a check at a currency exchange. When Alvarez left theliquor store he saw the victim crossing Lake Street. Alvarez heard agunshot after he got back into the car and saw the victim on the groundin front of a daycare center. Petitioner was crouching down next to thevictim and had a gun in his hand pointed towards the victim's chest. Alvarez got out of the car and shouted at petitioner, "[d]on't shoot him*** [y]ou already shot him." Alvarez crouched down in front of the carand when he looked up petitioner was going through the victim's pockets. Petitioner pointed the gun at Alvarez and subsequently fired a shot inhis direction. Alvarez went into the liquor store to ask for help andwhen he came out petitioner was running northbound.

On cross-examination, Alvarez testified that he was still in thecustody of the sheriff because of an error with his paperwork. Alvarezdenied that he was promised anything by the State in exchange for histestimony against petitioner.

Michael Aguilar testified that on the evening of July 26, 1990, he,the victim, Alvarez and another man drove to a liquor store. The victimwent to a nearby currency exchange to cash a check while Alvarez wentinto the liquor store to buy some beer. Immediately after Alvarezreturned to the car, he shouted, "Gonzalo is in trouble, Gonzalo gotshot." Alvarez began to run across the street and Aguilar followed him. Alvarez crouched down to the ground after a man with a gun shot at him. Aguilar did not get a good look at the shooter and could not positivelyidentify him.

Armando Alanis testified that he and the victim were friends. Onthe evening of July 26, 1990, Alanis was in his car at a stoplight whenhe observed petitioner and the victim in front of a daycare center andheard the two men arguing. Alanis heard a gunshot while he was drivingthrough the intersection. He immediately pulled his car over andgrabbed a stick that he kept in his car. Alanis then saw petitionershoot at the victim and go through his pockets. He also saw petitionershoot at Alvarez. He chased petitioner through a nearby alley andstopped after petitioner fired two shots at him.

Chicago Police Detective Richard Curley testified that on August22, 1990, he interviewed petitioner regarding a matter unrelated to thiscase. Petitioner subsequently directed Detective Curley and his partnerto a McDonald's parking lot in Maywood. Detective Curley searched thearea adjoining the parking lot and recovered a loaded .38 caliberrevolver. Petitioner identified the revolver and told Detective Curleythat he had thrown the gun there.

Donald Smith, a forensic scientist and firearms expert,subsequently compared a fired bullet recovered from the crime scene inthis case on July 26, 1990, with the gun recovered by Detective Curleyfrom the parking lot in Maywood. According to Smith, the bullet fromthe crime scene could have been fired only from the revolver recoveredby Detective Curley.

Petitioner filed a pro se petition for post-conviction relief onJune 2, 1995, raising numerous contentions. The circuit court appointedpost-conviction counsel who filed a supplemental petition on March 24,2000, alleging, in pertinent part, that petitioner was denied effectiveassistance of trial and appellate counsel, and that petitioner wasdenied a fair trial because the State failed to notify the court and thedefense that Alvarez received leniency in exchange for his testimony attrial. Attached to the petition were the partial transcripts of twohearings from August 1992 involving charges of criminal misdemeanordamage to property that were brought against Alvarez, an August 28, 1992sentencing order, and a sheet which contained Alvarez's criminalhistory. The State successfully moved to dismiss the supplementalpetition.

On appeal, petitioner contends that the circuit court erred ingranting the State's motion because he was denied a fair trial whenAlvarez gave false testimony regarding the leniency he received inexchange for his cooperation with the State, and the State failed tocorrect Alvarez's testimony.

The circuit court's decision to deny a post-conviction evidentiaryhearing is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 701N.E.2d 1063 (1998) (Coleman).

A petitioner does not have an automatic right to an evidentiaryhearing. Coleman, 183 Ill. 2d at 381. An evidentiary hearing iswarranted only when the allegations of the post-conviction petition,supported when necessary by the record or accompanying affidavits, makesa substantial showing that the petitioner's constitutional rights havebeen violated. People v. Barrow, 195 Ill. 2d 506, 749 N.E.2d 892 (2001)(Barrow). For the purpose of determining whether to grant anevidentiary hearing, all well-pleaded facts in the petition and in anyaccompanying affidavits must be taken as true. People v. Mahaffey, 194Ill. 2d 154, 742 N.E.2d 251 (2000).

Evidence of an understanding or an agreement between a witness andthe State as to any future prosecution is a factor that is relevant tothe witness' credibility of which the trier of fact should be informed. People v. Diaz, 297 Ill. App. 3d 362, 696 N.E.2d 819 (1998) (Diaz). Likewise, it is well established that the State's knowing use ofperjured testimony to obtain a criminal conviction violates thedefendant's right to due process of law. People v. Olinger, 176 Ill. 2d326, 680 N.E.2d 321 (1997); see also Giglio v. United States, 405 U.S.150, 153, 31 L. Ed. 2d 104, 107, 92 S. Ct. 763, 765 (1972) (Giglio);Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct.1173, 1177 (1959) (Napue). A conviction obtained by the knowing use offalse testimony must be set aside if there is a reasonable likelihoodthat the false testimony could have affected the verdict. Barrow, 195Ill. 2d at 530. These principles also apply when the State, while notsoliciting false testimony, allows it to go uncorrected when it occurs. Barrow, 195 Ill. 2d at 530.

Here, a review of the documents attached to the supplementalpetition show that Alvarez pled guilty on August 20, 1992, to two countsof Class A misdemeanor criminal damage to property in violation ofsections 21-1(1)(a) and 21-1(1)(h) of the Criminal Code of 1961 (Code)(720 ILCS 5/21-1(1)(a),(h) (West 1992)), for acts Alvarez committed onFebruary 23, 1992. The sentence for a Class A misdemeanor at that timewas limited to a term of less than one year in jail. 730 ILCS 5/5-8-3(a)(1) (West 1992). On August 20, 1992, the circuit court sentencedAlvarez to one year conditional discharge, including 160 hours ofcommunity service, and six days in jail which was time consideredserved. On August 27, 1992, the court modified the original sentencingorder and dropped the 160 hours of community service to reflect thatAlvarez satisfied that requirement by serving seven days in jail. Thisis consistent with Alvarez's testimony at petitioner's trial on August27, 1992, that he was still in custody on that date because of a mistakewith his paperwork.

Petitioner contends that these documents support his claim that thecommunity service requirements contained in the original sentencingorder were dropped because Alvarez cooperated with the State andtestified that petitioner was responsible for the victim's murder. Contrary to petitioner's speculation of leniency, the record revealsthat Alvarez viewed a line-up on September 20, 1990, more than one yearprior to committing the acts to which he pled guilty, and positivelyidentified defendant as the man who shot the victim. The record furtherreveals that on January 3, 1991, again more than one year prior to thetime he committed the relevant offenses, Alvarez was placed by the Stateon its list of potential witnesses in this case. Alvarez's modifiedsentence was not unlawful under the Code, and the seven additional daysthat he spent in jail were greater than the 160 hours of communityservice to which he was originally sentenced. See People v. Jimerson,166 Ill. 2d 211, 652 N.E.2d 278 (1995) (where one of the considerationsin determining whether there was a deal between the State and one of itswitnesses was the ultimate disposition of the witness' criminal case).

Moreover, unlike Giglio, Napue, and Diaz, relied upon bypetitioner, there was overwhelming evidence in this case other thanAlvarez's testimony which linked petitioner to the crime. Alanistestified that on the evening of July 26, 1990, petitioner and thevictim were having an argument, that petitioner went through thevictim's pockets, that he witnessed petitioner shoot at the victim andAlvarez, and that petitioner also fired a shot at Alanis when he chasedpetitioner through an alley. Alanis displayed no hesitancy inidentifying petitioner as the perpetrator at trial and previously hadidentified petitioner in a line-up. Although Aguilar was unable topositively identify petitioner, his testimony largely corroborated thetestimony of Alvarez and Alanis concerning the circumstances surroundingthe crime.

Finally, one of the fired bullets recovered from the crime scene inthis case was positively linked to the .38 caliber revolver thatpetitioner directed Detective Curley to in Maywood on August 22, 1990. Therefore, even assuming that Alvarez received consideration in exchangefor his testimony, and the State failed to disclose it, it isunreasonable to conclude that Alvarez's uncorrected testimony to thecontrary affected the outcome of this case. See, e.g., People v.Williams, 332 Ill. App. 3d 254, 773 N.E.2d 143 (2002) (where evenassuming that the State's witness who testified against the defendant ina murder prosecution had received a reduced sentence in exchange for hiscooperation, and the State failed to disclose it, the allegeduncorrected false testimony did not affect the verdict).

For all the foregoing reasons, the circuit court properly grantedthe State's motion to dismiss the post-conviction petition.

Accordingly, the judgment of the circuit court of Cook County isaffirmed.

Affirmed.

THEIS, P.J. and GREIMAN, J., concur.