NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
20 2 2 IL App ( 3d ) 190792

- U O rder filed August 26, 2022

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT 2022
THE PEOPLE OF THE STATE OF ) ILLINOIS, ) ) Plaintiff

- Appellee, ) ) v. ) ) TRAY B. HARGROW , ) ) Defendant -Appellant. ) Appeal from the Circuit Court of the 10 th Judicial Circuit, Peoria County , Illinois , Appeal No. 3-19-0792 Circuit No. 15- CF -428 Honorable Paul P. Gilfillan , Judge, Presiding.

____________________________________________________________________________ JUSTICE DAUGHERITY delivered the jud gment of the court

. Justice s Hauptman and Peterson concurred in the judgment.

____________________________________________________________________________ O RDER ¶ 1 Held : The circuit court erred in dismissing defendant’s postconviction petition because it alleged an arguable claim of actual innocence. ¶ 2 Defendant , Tray B. Hargrow, appeals from the Peoria County circuit court ’ s first

- stage dismissal of his postconviction petition. Defendant argues that the petition made an arguable claim of actual innocence because the attached affidavits are new, material, noncumulative evidence that clearly and convincingly demonstrate that a t rial would probably result in acquittal. We reverse and remand.2 ¶ 3 I. BACKGROUND ¶ 4 Defendant was charged with three counts of first degree murder of Rogelio De La Rosa (720 ILCS 5/9

- 1(a) (West 2014)). The following evidence was presented at trial. ¶ 5 On December 2, 2014, De La Rosa called his friend Barbara Price at approximately 9
p.m. from USA Technologies where he worked. De La Rosa told Price that a friend was stopping by and he needed to step outsid e to talk with them. The two men sounded agitated. Price overheard one m a n tell De La Rosa to “[j]ust get in the car.” De La Rosa questioned why the men were doing this and said “[y]ou can have everything I got, just go.” The phone call ended abruptly around 9:30 p .m . Price believed De La Rosa’s cell phone had been broken. Security footage showed a silver, light

- colored minivan arrive at USA Technologies near the employee exit. The van remained for a short period of time and then quickly took off. ¶ 6 At a ppr oximately 10 p .m., Officers Brian Sylvester and Jacob Beck heard gunshots while performing a traffic stop

. Dispatch informed the o fficers that a caller stated several gunshots were fired in the area of Perry Avenue and Morton Street . The o fficers found De La Rosa lying unresponsive on the ground

. ¶ 7 Several other officers arrived and canvassed the area around De La Rosa’s body. Officers did not speak with any eyewitnesses but found pieces of a cell phone and De La Rosa’s wallet

. D ata was acqu ired from De La Rosa’s cell phone and given to Detective Jason Spanhook. ¶ 8 A ccording to the cell phone data, defendant called De La Rosa 11 times on December 2,
2014. The last call was made at approximately 9:30 p

. m. The records also showed that defendant called Robert Mister 22 times on December 2, 2014, with the last call being at 9:50 p

. m. ¶ 9 Defendant was detained on unrelated matters and interviewed by Spanhook and Detective Shawn Curry

. Defendant acknowledged being a friend of Mister, whose ni ckname was “ CT ” or3 “ Cut Throat .” Defendant s tated that CT was a rapper. Defendant admitted to once buying synthetic cannabis ( K2 ) from De La Rosa . Defendant knew of De La Rosa because he sold K2 to residents of the halfway house where defendant once resided. According to Spanhook, d efendant did not reside at the halfway house at the same time as De La Rosa. ¶ 10 Marco McKnight testified that he and defendant had been inmates in the Peoria County j ail. McKnight witnessed an officer swab defendant for DNA. Defendant asked McKnight , “[w]hat do you think that was for?” McKnight replied , “[w]ell, I don’t know what that’s for, only
y ou know what that’s for. You ain’t got to tell me, but you know what it’s for.” De fendant stated that he and two or three other people were looking for money to party with, so defendant called “the deceased” because he knew he sold K2 inside the halfway house. Defendant and the others
met De La Rosa in the alley between Perry Avenue and Evans Street

. They only intended to rob
De La Rosa, but he would not give them his belongings , so CT shot and killed him. Defendant searched De La Rosa’s pockets a nd took his money. ¶ 11 McKnight wrote a letter to Curry to inform him he had information. McKnight then spoke with Curry. The following day, defendant asked McKnight whether he “told on him.” McKnight replied he did not want to talk to defendant. Defendant approached McKnight from behind and start ed punching him

. They wrestled until the guards broke the fight up. ¶ 12 McKnight acknowledged that he previously entered into a proffer and cooperation agreement with the federal government. On cross

- examinat ion, he admitted that he was previously convicted of possession of cocaine with intent to d eliver and possession of a controlled substance with intent to d eliver . Additionally, McKnight was recently indicted with a federal offense. Pursuant to McKnight’s p roffer and cooperation agreement, he was required to provide substantial assistance in the investigation or prosecution of other criminal offenses in4 exchange for a possible sentence reduction. McKnight provided the federal governmen t with statements in the prosecution of his codefendants. ¶ 13 Prior to the defense resting, defendant entered a negotiated plea to one count of first degree murder

. Pursuant to the plea, d efendant was sentenced to 35 years’ imprisonmen t. ¶ 14 Defendant filed a postconv iction petition as a self

- represented litigant wherein he asserted “I didn’t kill anyone and I was not there at the murder either.” Defendant attached two affidavits to his petition. One affidavit was from Steve Holcomb who defendant met while in prison. Holcomb ’s affidavit read:

“ My name is Steve Holcomb and I lived on Perry and Morton when the Mexican was ki lled in December of 2014, and I seen the 2 people that killed the man. It was CT the Rapper that was murdered he pulled the trigger he shot the man a few times he fell and then he shot him some more. Then I [saw Demetrius Bell bend] over the body I couldn’t really see what was going on but I think he was checking his pockets or something. It was only the m 2 people there nobody else then I seen them jump in a blue van and speed off. Also I have proof that I lived in that house my name was on the lease. ” ¶ 15 The second affidavit was from Edw ard Spiller who defendant met after the trial. In the affidavit, Spiller claimed he had a conversation with McKnight wherein McKnight admitted to lying to the police. D efendant never confessed to McKnight about his involvement in De La Rosa’s murder. McKni ght heard about the murder in the news and fabricated a story hoping to get a reduction of his s entence. ¶ 16 The circuit court dismissed defendant ’ s petition at the first stage findin g it frivolous and patently without merit

. Defendant appealed.5 ¶ 17 II. ANALYSIS ¶ 18 Defendant argues that the circuit court erred in dismissing his postconviction petition because it made an arguable claim of actual innocence. Specifically , Holcomb and Spiller ’s affidavits are new, material, noncumulative evidence that clearly a nd convincingly demonstrate that a trial would probably result in acquittal. ¶ 19 The Post

- Conviction Hearing Act (725 ILCS 5/122 -1 et seq. (West 2016)) sets out a three

- stage proceeding in which a criminal defendant may assert that his conviction resulted fro m a substantial denial of his rights under the United States Constitution, the Illinois Constitution, or both. People v. Hodges , 234 Ill. 2d 1, 9 (2009). A reviewing court reviews de novo whether the circuit court erred in dismissing defendant’s first

- stage postconviction petition. Id. At the first stage, a petitioner need only allege enough facts to make an arguable constitutional claim. Id. at 16

- 17, 21. Additionally, all well

- pleaded facts are to be taken as true unless positively rebutted by the rec ord. Hodges , 234 Ill. 2d at 16; People v. Coleman , 183 Ill. 2d 366, 380

- 81 (1998). A petitioner raising an actual innocence claim after guilty plea proceedings must provide “new, material, noncumulative evidence that clearly and convincingly demonstrates t hat a trial would probably result in acquittal.” People v. Reed , 2020 IL 124940, ¶ 49. ¶ 20 New evidence means the evidence was discovered after the court accepted the plea and could not have been discovered earlier through the exercise of due diligence. Id. T he State concedes both affidavits are arguably new because they could not have been available at the time defendant entered his guilty plea and could not have been discovered sooner. We agree with the parties that the affidavits are arguably new.6 ¶ 21 Noncumul ative evidence adds to the information that the fact finder heard during trial. People v. White , 2014 IL App (1st) 130007, ¶ 24

. Holcomb ’s affidavit is arguably noncumulative evidence because there was no eyewitness testimony presented at trial. Spiller ’s affidavit is arguably noncumulative because no direct evidence was present ed at trial that McKnight fabricated his story. ¶ 22 Material evidence is evidence that is relevant and probative of defendant’ s innocence. Id. Spiller and Holcomb ’s affidavit s are arguabl y material as both significantly undermine the credibility of McKnight’s testimony. W ithout McKnight’s testimony, which essentially amounts to an admission of guilt by defendant, the State’s case is entirely circumstantial. Spiller claims McKnight fabricated hi s testimony hoping to receive leniency on his own sentence. Holcomb alleges an alternative telling of the murder that conflicts with McKnight’s te stimony

. Notably, Holcomb asserts that defendant was not even present during the murder

. T hese affidavits , together and taken as true , reduce the State’s case to one of entirely circumstantial evidence based solely on a theory of accountability. ¶ 23 Based on the low threshold for a petition to survive the first stage ( Hodges , 234 Ill. 2d at 9) , it is a rguable that Holcomb and Spiller ’s affidavit s, clearly and convincingly demonstrate that a new tri a l would probably result in acquittal. Accordingly, we reverse and remand for second

stage proceedings. ¶ 24 III. CONCLUSION ¶ 25 The judgment of the circuit court of Peoria County is reversed and remanded

. ¶ 26 Reversed and remanded.