People v. White, 2014 IL App (1st) 130007 (December 18, 2014). Cook Co., 4th Div. Reversed and remanded. Defendant Kenyatta White was convicted of first degree murder following a bench trial in 2006. Defendant filed an initial post-conviction petition in 2012, alleging actual innocence. The court dismissed the petition as being frivolous and patently without merit at first-stage proceedings. However, the First District appellate court reversed and remanded for further proceedings.

The defendant’s post-conviction petition was accompanied by several affidavits from occurrence witnesses and one affidavit from defendant’s counsel on direct appeal. One of the witness’ affidavits avers that the defendant was at the scene of the shooting and that the defendant did not shoot the victim. White claimed that this witness had testified that defendant was the shooter at trial because he had been threatened into doing so.

During the first of three stages in the post-conviction process, “the court treats allegations of fact as true so long as those allegations are not affirmatively rebutted by the record. [Citation.] Any petition deemed frivolous or patently without merit must be dismissed. [Citation.] A petition is frivolous or patently without merit where it has no arguable basis either in law or in fact in that it is based on an indisputably meritless legal theory or fanciful factual allegations. [Citation.] An example of an indisputably meritless legal theory is one that is completely contradicted by the record. [Citation.] Fanciful factual allegations include those that are fantastic or delusional. [Citation.]” Thomas, 2014 IL App (2d) 121001, ¶ 47. To survive the first stage of postconviction proceedings, a petition claiming actual innocence based on newly discovered evidence must present evidence that is arguably “new, material, noncumulative *** [and] so conclusive it would probably change the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96; Thomas, 2014 IL App (2d) 121001, ¶ 47.

The Court had to first decide whether the witness affidavit tending to exonerate defendant was “newly discovered evidence” such that the petition could survive first-stage dismissal. To constitute “newly discovered evidence” the evidence must have been unavailable at the original trial and evidence that could not have been discovered sooner through diligence. People v. Anderson, 402 Ill. App. 3d 1017, 1028 (2010). The State argued that defense counsel had access to this witness at trial, such that any statements he made could have been discovered prior to or during trial. However, the appellate court disagreed because the affidavit indicated that the State’s witness would not have spoken to the defense if contacted, and, “taking his statements as true and construing Jennings’ affidavit in favor of defendant, as we must, we find that no amount of diligence by defendant could have compelled Jennings to testify to the statements in his affidavit sooner.” The affidavit was therefore considered “newly discovered” evidence. Furthermore, the court held that the evidence was material and non-cumulative and at least arguably likely to change the result at trial. Accordingly, the defendant’s petition was adequately plead to survive first-stage dismissal, and the trial court’s order dismissing the petition was reversed and remanded for second-stage proceedings.

This case demonstrates the basic principle that a pro se post-conviction must only present a “gist” of a constitutional claim to survive first-stage dismissal. The court here correctly decided that a State’s witness’ affidavit recanting his prior trial testimony (and giving a good reason for doing so) adequately stated a gist of a constitutional claim such that the defendant’s claims warranted further consideration after the appointment of counsel.