SIXTH DIVISION April 28, 2023

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

No. 1-20-0903

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 02 CR 13513 ) ANGEL CLASS, ) Honorable ) Angela Munari Petrone, Defendant-Appellant. ) Judge Presiding. )

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices C.A. Walker and Tailor concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, Angel Class was convicted of first degree murder with a firearm

and aggravated discharge of a firearm and sentenced to 45 years in prison. The convictions

stemmed from a drive-by shooting on October 22, 2001, that killed Tony Koniewicz. The State’s

case relied almost entirely on the testimony of a single eyewitness, who testified that she was

driving the car from which Mr. Class fired upon Mr. Koniewicz. No other witnesses identified Mr.

Class as Mr. Koniewicz’s killer or could even provide circumstantial evidence suggesting his

involvement in the crime. Nor was there any physical evidence connecting him to the shooting.

Mr. Class has always maintained his innocence, claiming he was at home with his family on the

night of the shooting and that he had nothing to do with it. No. 1-20-0903

¶2 This appeal concerns the dismissal of Mr. Class’s successive petition for postconviction

relief where, among other things, he advanced a claim of actual innocence. For the reasons that

follow, we find that his petition was erroneously dismissed at the second stage. Taken

cumulatively, Mr. Class’s petition made a substantial showing of actual innocence, entitling him

to a third-stage evidentiary hearing where the circuit court, serving as factfinder, must determine

whether the evidence introduced demonstrates that Mr. Class is entitled to a new trial.

¶3 I. BACKGROUND

¶4 A. Trial

¶5 The only witness that identified Mr. Class at trial as the person who murdered Tony

Koniewicz was Heather Ambrose. She testified that she was an associate of some Satan Disciples

gang members and that on the day of the shooting, Mr. Class and a man named Elias (or Eli)

Salazar—both members of the gang—arrived at her grandparents’ house around 7 p.m. and had

her drive them in her car (a gray 1991 Pontiac Grand Am) to territory controlled by the C-Notes,

a rival gang. She knew Mr. Class from grammar school, and she knew Mr. Salazar because she

used to date his brother.

¶6 According to Ms. Ambrose, Mr. Salazar sat in the back seat of her car and Mr. Class sat in

the front. She testified that once they entered rival gang territory, Mr. Class instructed her to pull

up next to a car parked near the intersection of Oakley Boulevard and Ohio Street. She testified

that when they reached the parked car, Mr. Class hailed its occupants as if to greet them before

pulling out a gun and firing numerous shots into the car while shouting gang slogans. The other

car then attempted to make a U-turn, and Mr. Class told her to look straight ahead and drive to his

house. When she dropped Mr. Class and Mr. Salazar off at Mr. Class’s house, Mr. Class told her

to go straight home, and she did.

2 No. 1-20-0903

¶7 She testified that the following morning, Mr. Class returned to her house with Mr. Salazar

and told her they had to clean the car. The three of them then went to pick up a woman named

Pattie, a friend of Mr. Class’s, and they all went to the car wash. Ms. Ambrose further testified that

Mr. Class told her not to talk to the police. She claimed that three days later, Mr. Class gave her

gas money to return to her home state of Kentucky and threatened to harm her grandparents if she

told anyone anything about the shooting. She left for Kentucky the following day.

¶8 On cross-examination, Ms. Ambrose acknowledged that she had a Satan Disciples tattoo

and that she had been convicted in federal court of aiding and abetting aggravated criminal sexual

abuse. She also admitted that when detectives tracked her down in Kentucky and asked her about

the shooting, she initially told them that she did not know anything. She then told them that

someone had borrowed her car on the date of the shooting. She also stated during her cross-

examination that she could not remember whether anyone besides Mr. Salazar and Mr. Class were

in her car on the night of the shooting, and she said that, independent of the events surrounding the

shooting, she had been planning to go to Kentucky to visit her pregnant sister.

¶9 Several other witnesses testified for the State, although they did not identify anyone as the

murderer. These witnesses confirmed that Mr. Koniewicz was shot, but some of their testimony

suggested this occurred later in the evening than Ms. Ambrose’s testimony would indicate. Tammy

Scatanese, Mr. Koniewicz’s sister, testified that “just after 9:00” on the evening of the shooting

“the phone rang” and the person on the other line “said that [Mr. Koniewicz] was in a car and had

been shot.” The State also called Gerard Recasi, who testified that he was a friend of Mr.

Koniewicz, a fellow member of the C-Notes gang, and the person in the passenger seat of Mr.

Koniewicz’s four-door red Corsica during the shooting that killed Mr. Koniewicz.

¶ 10 Describing his experience during the shooting, Mr. Recasi testified that he instinctively

3 No. 1-20-0903

ducked during the gunfire. He recalled hearing between 9 and 10 gunshots. When it was over and

he got back up, apparently unscathed, he looked over at Mr. Koniewicz and noticed that Mr.

Koniewicz was bleeding from the mouth and chest. He testified that Mr. Koniewicz, who was in

the driver’s seat, then attempted to turn the corner but was struggling from his injuries and “after

I seen he couldn’t take it no more,” Mr. Recasi took control of the wheel and drove to the hospital.

¶ 11 Mr. Recasi testified that he was unable to see who fired the shots or describe the car from

which they came. The only time frame that Mr. Recasi gave for the shooting was “evening hours.”

The State then presented Mr. Recasi with testimony he had given before the grand jury, where he

had stated that the car that fired at them was gray and had pulled up to the left side of their car,

next to Mr. Koniewicz. On redirect, Mr. Recasi reiterated that while he was in the car during the

shooting, he did not actually see Mr. Koniewicz get shot.

¶ 12 The State also called several law enforcement witnesses. Officer Luis Arroyo of the

Chicago Police Department (CPD) testified that at about 10 p.m. on the day of the shooting, he

was told to go to St. Mary’s Hospital at 2233 West Division Street, where a shooting victim had

been taken. When he arrived, he spoke with Mr. Recasi and wrote an initial report. Mr. Recasi

gave a description of the color of the car that had shot at them, but no description of the shooter.

Officer Arroyo then visited the crime scene and Mr. Koniewicz’s car and recorded his

observations.

¶ 13 The State next called Robert J. Davie, a forensic investigator with CPD, who described

visiting the crime scene, taking photographs, and collecting firearm evidence. Mr. Davie testified

that he and his partner collected nine fired cartridges and two bullets, all from a 9-millimeter

weapon. He testified that a third bullet was later recovered from a bullet hole in the driver’s side

door of Mr. Koniewicz’s vehicle. The parties then entered a stipulation that if called to testify, a

4 No. 1-20-0903

witness from the Illinois State Police Forensic Science Laboratory would have testified that the

two bullets collected from the scene were fired from the same 9-millimeter gun, as was the third

bullet recovered from the door of the car. They also stipulated that none of the bullets contained

impressions suitable for fingerprint analysis and that a fourth bullet recovered during Mr.

Koniewicz’s autopsy came from the same firearm as the other three bullets.

¶ 14 Detective Robert Rodriguez of the CPD testified that he was assigned to investigate the

shooting at around 10:40 p.m. on the night of October 22, 2001. He and his partner first went to

the scene, where he canvassed the area and noticed shell casings and broken glass. They then went

to the hospital, where they spoke with Mr. Recasi and some of Mr. Koniewicz’s family members.

Detective Rodriguez testified that, initially, he had no leads or descriptions of the shooter, but that

as he continued to investigate, he eventually received an anonymous tip that Heather Ambrose had

been “talking about her participation in the drive-by shooting.” He also learned that she had left

Chicago and was living with her mother in Richmond, Kentucky. When he travelled to Kentucky

to speak with Ms. Ambrose, she initially denied any firsthand knowledge of the shooting. After

speaking with Ms. Ambrose, the detective then began to look for Eli Salazar.

¶ 15 Detective Rodriguez was unable to locate Mr. Salazar in Chicago, but he received

information that Mr. Salazar may have fled to Texas. Eventually, Detective Rodriguez located him

in Gainesville, Texas. Detective Rodriguez interviewed Mr. Salazar, who was uncooperative at

first, but eventually gave a handwritten statement (which was not introduced at trial). He also

agreed to come back to Chicago to testify before the grand jury. Detective Rodriguez also testified

that another detective had interviewed someone named “Pattie.” Detective Rodriguez then

described trying to locate Mr. Class for several months and getting an arrest warrant. He was not

present at Mr. Class’s arrest, but he stated that it took place at Mr. Class’s mother’s house in

5 No. 1-20-0903

Chicago.

¶ 16 Officer Delatorrie of the CPD’s Gang Tactical Team testified that he had been assigned

the task of tracking down Mr. Class and arresting him. On April 27, 2002, he had received

information that there was going to be a party for Mr. Class’s daughter at a house and that Mr.

Class might be there. Officer Delatorrie and five fellow officers went to the house to set up

surveillance and saw Mr. Class standing there. Mr. Class made eye contact with the officers then

ran into the house. Two of the officers chased Mr. Class into the house. Officer Delatorrie testified

that Mr. Class was detained while trying to escape through the rear of the house. The State rested

its case after entering a few more stipulations and calling one more law enforcement witness, an

investigator for the Cook County State’s Attorney’s Office, who described how law enforcement

had managed to track down Eli Salazar.

¶ 17 After unsuccessfully moving for a directed finding for a judgment of acquittal, Mr. Class

called Milton Correa as his first witness. Defense counsel attempted to have Mr. Correa testify to

a statement that he said Eli Salazar made to him, in which Mr. Salazar admitted to shooting Mr.

Koniewicz. The State objected, arguing that counsel was eliciting hearsay. Counsel responded that

the statement was nonetheless admissible as a statement against Mr. Salazar’s penal interest. The

State’s objection was sustained. Defense counsel, seemingly unprepared for this ruling, asked the

court to hold the case until the following day.

¶ 18 The following day, defense counsel asked for another continuance until the following week

so he could put on the rest of the case “based upon what investigators have located.” When that

date came, Mr. Class was present, but his attorney was not, and the court continued the matter until

the following day. Mr. Class’s attorney missed that court date as well, claiming he had the flu and

needed a few days to recover. When the next trial date came, on January 26, 2004, defense counsel

6 No. 1-20-0903

was present but asked for another continuance, claiming that a critical witness “decided to

disappear on us.” The State objected to any further delay, but the court granted one final

continuance. On February 4, 2004, the date set for trial, defense counsel reported that this “critical

witness” was a man named Christopher Stanley and that, despite diligent efforts, counsel had not

been able to locate him. Defense counsel then called Mr. Class to the stand to testify.

¶ 19 In his trial testimony, Mr. Class admitted to being a member of the Satan Disciples. He

said that he lived with his mother, his girlfriend, and his two children. He knew Heather Ambrose

from school and said that she was also a member of the Satan Disciples and that she had a tattoo

of a devil with two smoking guns, which is the sign for the gang. He testified that he also knew

Eli Salazar as a member of the Satan Disciples. Mr. Class explained that both he and Mr. Salazar

held rank within the gang. Mr. Salazar “controlled Texas,” but, when in Chicago, Mr. Class held

authority over Mr. Salazar.

¶ 20 According to Mr. Class, his gang’s tensions with the C-Notes were the result of

provocations by Mr. Salazar, who would drive through C-Notes territory and pull out his

cellphone, “acting like he had a gun.” Mr. Class stated that he had confronted Mr. Salazar the

Saturday before the murder of Mr. Koniewicz about these provocations and told him to stop

“messing with” the C-Notes. He explained that he was upset about Mr. Salazar’s provocations

because they had led to his friend Roberto Karsnetto being shot by the C-Notes.

¶ 21 Mr. Class testified that while Mr. Salazar went back and forth between Chicago and Texas,

he had been living in Chicago with a woman named Onyx Santana for about a month before Mr.

Koniewicz was shot. He further testified that, although there had been problems with the Satan

Disciples and the C-Notes five years earlier, tensions had died down until Mr. Salazar came back

from one of his trips from Texas, with Heather Ambrose. Mr. Class blamed Mr. Salazar and Ms.

7 No. 1-20-0903

Ambrose, who he described as boyfriend and girlfriend, for “starting confusion” with the C-Notes.

According to Mr. Class, Ms. Ambrose had also previously been romantically involved with Mr.

Salazar’s brother, as well as with some C-Notes. When Mr. Class confronted Mr. Salazar that

Saturday before the shooting about his behavior towards the C-Notes, he also told him that ever

since he started to hang out with Ms. Ambrose, “a lot of my friends were getting hurt.” Mr. Class

claimed that he demanded that Mr. Salazar not bring Ms. Ambrose around anymore, and “Eli got

a little upset, because I was, you know, making direct comments towards his girlfriend.”

¶ 22 Mr. Class testified that, the following day, he had another confrontation with Mr. Salazar

and Ms. Ambrose. When the couple showed up at a gang meeting, Mr. Class ordered Mr. Salazar

not to “bring this girl around here.” He testified that Ms. Ambrose then got upset and “said

something wrong to me,” so Mr. Class “muffed her in the face.” Mr. Salazar and Ms. Ambrose

then got into their car and angrily took off. Mr. Salazar then returned to the meeting a few minutes

later, without Ms. Ambrose. This encounter took place the night before the murder of Tony

Koniewicz.

¶ 23 Mr. Class testified that he had nothing to do with the murder of Tony Koniewicz and that

he was home with his family at the time of the shooting. He also testified that after the murder of

Mr. Koniewicz, when his mother told him the police had been by the house looking for him, he

did not think much of it, as “they would always come question me on previous cases.” He did not

treat the matter with urgency, as he assumed they wanted to talk about a different incident from a

few months before, in which he had been the one shot. He also testified that he did not see Ms.

Ambrose or Mr. Salazar again after telling them off the day before the shooting. He denied ever

going with them to a car wash. He also denied running away from the police when they eventually

came to arrest him at his mother’s house.

8 No. 1-20-0903

¶ 24 Defense counsel called no additional witnesses, and Mr. Class was found guilty of first

degree murder. On September 1, 2004, the court sentenced him to 45 years, 20 years for the

underlying offense, plus a mandatory enhancement of 25 years for the finding of personal

discharge of a firearm resulting in death, as well as 5 years to be served concurrently for the charge

of aggravated discharge of a firearm.

¶ 25 B. Subsequent Procedural History

¶ 26 We affirmed Mr. Class’s convictions on direct appeal (People v. Class,

(2006) (table) (unpublished order under Supreme Court Rule 23)), rejecting his arguments

that the trial court had improperly granted the State’s petition to extend the trial term, improperly

excluded Milton Correa’s testimony about Mr. Salazar having admitted to shooting Tony

Koniewicz, and improperly concluded that the State had proved his guilt beyond a reasonable

doubt.

¶ 27 Mr. Class filed his first petition for relief under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2006)), on August 18, 2006. In that petition, filed pro se, Mr. Class

alleged his trial counsel was ineffective for failing to investigate, interview, and present alibi

witnesses. To substantiate this allegation, he attached six affidavits from family members, all

averring that he was home from 7:30 p.m. onwards on the night of the shooting. In addition to

these family member alibi witnesses, Mr. Class also alleged the existence of two additional

eyewitnesses, but did not identify them or provide affidavits from them.

¶ 28 The court dismissed Mr. Class’s initial petition on November 16, 2006. It found that his

allegation of ineffective assistance of counsel based on the unnamed eyewitnesses was conclusory

and unsupported by any factual allegations. As to the six affidavits from family members, the court

found that nothing had prevented Mr. Class from raising arguments related to these witnesses on

9 No. 1-20-0903

direct appeal and that he had thus forfeited such arguments. Additionally, the court noted that any

failure to call family members as witnesses did not prejudice him, as they were all biased witnesses

with a strong incentive to help him.

¶ 29 We affirmed the dismissal of Mr. Class’s initial postconviction petition on December 12,

2008. People v. Class,

(2008) (table) (unpublished opinion under Supreme

Court Rule 23). We noted in that order that the supposed alibi established by the affidavits from

his family members was that Mr. Class was at home from 7:30 p.m. onward on the night of the

shooting. Ms. Ambrose had testified that she picked up Mr. Class at around 7 p.m. Given this half-

hour discrepancy, we concluded that the affidavits did not establish a conclusive alibi, providing

an additional reason why the trial attorney’s decision not to call the family members did not amount

to ineffective assistance.

¶ 30 Mr. Class filed his successive petition—the subject of this appeal—on May 16, 2016,

asserting a claim of actual innocence as well as other constitutional claims that he has not pursued

in this appeal. In support of his actual innocence claim, he attached to the petition five new

affidavits. We will set out those affidavits in the order in which they were reviewed by the trial

court in its decision dismissing this successive petition.

¶ 31 The first affidavit the court reviewed was from William Sanchez, dated November 20,

2012. In his affidavit, Mr. Sanchez said that “at 10:00 or 10:30 p.m. on October 22, 2001” he was

walking east on Ohio Street and saw a gray Pontiac drive past. He knew this car belonged either

to Heather Ambrose or to Eli Salazar, whom he referred to as her spouse. He also noticed a red car

stopped on the corner of Ohio Street and Leavitt Street. He witnessed the gray car pull up next to

the red one and saw a light-skinned, “almost white” individual fire from the gray car toward the

red one. He said in his affidavit that he did not come forward because he was on parole and was

10 No. 1-20-0903

scared that the police might treat him as a suspect in the shooting investigation. He stated that he

recently found out that Mr. Class had been convicted of this murder and that he knew that “Angel

Class did not have anything to do with the shooting that took place on October 22, 2001.”

¶ 32 The second affidavit was from Onyx Santana, dated December 23, 2015. At trial, Mr. Class

briefly mentioned Ms. Santana as the person that Eli Salazar was staying with upon returning to

Chicago about a month before the murder. In her affidavit, Ms. Santana stated that, in September

2015, she became aware of a statement Mr. Salazar had made to law enforcement shortly after the

murder in which he claimed that he, Ms. Ambrose, and Mr. Class had visited Ms. Santana’s house

on October 22, 2001, the day of the murder. She described Mr. Salazar’s statement as false.

According to her, Mr. Class never visited her house that day, but she was visited by Mr. Salazar,

Ms. Ambrose, and “an extremely dark black man,” who she did not know. At her house, as Ms.

Ambrose and Mr. Salazar smoked marijuana, they spoke openly about wanting to shoot someone,

which caused her to immediately ask them to leave.

¶ 33 The third affidavit was from Eugene Horton, dated March 1, 2016. Mr. Horton described

himself as a trained paralegal who had agreed to help Mr. Class find witnesses to the shooting. His

assistance came in the form of posting notices on streetlamps in the community where the shooting

occurred. In the affidavit, he stated that he agreed to help Mr. Class because he believed he was

innocent.

¶ 34 The fourth affidavit was from Robert Pasco, dated March 13, 2016. Mr. Pasco said that, on

October 23, 2001, Mr. Salazar told him that he “finally got C-note Tuggie” last night. Mr. Pasco

explained that “C-note Tuggie” was a nickname for Tony Koniewicz. In his affidavit, Mr. Pasco

wrote that Mr. Salazar also told him that he, Ms. Ambrose, and “Black Christopher” were at Onyx

Santana’s house before they “drove up on Tuggie at a stop sign on Ohio & Levitt and started

11 No. 1-20-0903

shooting his car up.” Mr. Pasco further stated in his affidavit that Mr. Salazar threatened him,

saying that if he told anyone else, he would be killed next. According to Mr. Pasco, on October

24, 2001, he was stopped by the police and asked about the shooting of Tony Koniewicz. He shared

with them what Mr. Salazar had confessed to him. He said he had only recently learned that Angel

Class had been convicted of the murder and that he did not want an innocent person to be

incarcerated for a crime he did not commit.

¶ 35 The last affidavit the court reviewed was from Christopher Stanley, dated December 23,

2015. At trial, Christopher Stanley’s name was briefly mentioned by defense counsel as the witness

he had asked for a continuance to track down but had ultimately failed to locate despite diligent

efforts. In his affidavit attached to this postconviction petition, Mr. Stanley said that, on October

22, 2001, he was “in the back seat of Heather Ambrose[’s] car when she pulled up on the side of

a red car. Elijah Salazar then lowered the window and started shooting at the red car.” According

to Mr. Stanley’s affidavit, Angel Class was not in the car. Mr. Stanley also alleged that he “did not

come forward with this information sooner because he was in fear of his life.” He also noted that

he first learned that Mr. Class was in jail for this offense in April 2015.

¶ 36 On July 29, 2016, the circuit court advanced the petition to second-stage proceedings,

stating that it was doing so based on the affidavit of Christopher Stanley being newly discovered

evidence of actual innocence. The court appointed counsel to work on Mr. Class’s claim.

¶ 37 On September 29, 2016, Mr. Class, now represented by the Cook County public defender’s

office, moved for witness statements, grand jury testimony, and leave to subpoena police reports

in compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). Throughout the last

months of 2017, Mr. Class’s lawyer told the court she was still looking for witnesses and

investigating. In March and April 2018, she was still attempting to locate and interview

12 No. 1-20-0903

Christopher Stanley, whom she referred to as the “principal affiant.”

¶ 38 On June 4, 2019, Mr. Class’s appointed attorney filed a Rule 651(c) affidavit, stating that

she had consulted with Mr. Class and obtained and examined his trial transcripts. She declined to

amend his petition and noted her inability to locate Mr. Stanley after diligent efforts. The attorney

also supplemented Mr. Class’s pro se postconviction filing with the six affidavits of family

members (which had been attached to his initial petition) that averred that Mr. Class had been

home with them from 7:30 p.m. on October 22, 2001.

¶ 39 On June 24, 2019, the State moved to dismiss the petition, arguing that the affidavits from

Onyx Santana and Christopher Stanley could not be considered new evidence because both

individuals were known to Mr. Class at the time of his trial. Mr. Stanley was in fact named as a

potential defense witness in an answer to discovery, and Ms. Santana’s name had come up during

Mr. Class’s direct examination. Additionally, the State argued that Mr. Class’s new affiants

provided inadmissible hearsay, the substance of their statements pertained to collateral matters,

and, at most, their statements raised reasonable doubt, not proof of actual innocence. Additional

briefing pertaining to whether Mr. Stanley was available to testify at trial was submitted by

appointed counsel for Mr. Class and by the State.

¶ 40 The appellate record before us is not well organized, and many things appear to be out of

order. It also appears that some of the pleadings in this case are missing. However, according to

the trial court’s order dismissing this successive postconviction petition, on January 2, 2020,

counsel for Mr. Class filed a motion to supplement the successive petition with an investigative

report of an interview of Christopher Stanley that took place on November 8, 2019. According to

the trial court order, in that interview, which was conducted by an investigator for the Cook County

public defender’s office, Mr. Stanley acknowledged that he had signed the affidavit. However, he

13 No. 1-20-0903

also stated that “neither he nor Angel Class were there during the incident.” The court order also

states that in response to the investigative report regarding Mr. Stanley, the State filed a

supplemental motion to dismiss on January 15, 2020, arguing that the Stanley affidavit could no

longer be presumed to be true where he rebutted his own claims with his subsequent statements.

Mr. Class responded through counsel that due to the inconsistencies in the statements from Mr.

Stanley, he should at least be allowed to testify at a third-stage hearing, so the court could assess

his credibility.

¶ 41 On July 14, 2020, the trial court granted the State’s motion to dismiss the petition. The trial

court concluded that Mr. Class’s “filings and supporting documentation fail under the cause and

prejudice standard of review and fail to demonstrate actual innocence.” The trial court retraced the

trial evidence and procedural history. It then examined each of the five new affidavits separately

under what appears to be a combination of the criteria for finding cause and prejudice and the

criteria for finding a sufficient showing of actual innocence.

¶ 42 The court began with Mr. Sanchez’s affidavit. The court found “cause” for not producing

this witness earlier, since Mr. Sanchez was not known to have been a witness. However, the court

found no prejudice because the affidavit failed to explain how Sanchez knew Ms. Ambrose, Mr.

Salazar, or Mr. Class or what they looked like. The court found “nothing of a conclusive character

that would probably change the result on retrial.”

¶ 43 The court next addressed Onyx Santana’s affidavit. The court found no cause for failure to

present Ms. Santana earlier and concluded that even if there were cause, her affidavit failed to

demonstrate actual innocence, since she did not aver that she was present at the time of the

shooting.

¶ 44 The court found Mr. Horton’s affidavit inadmissible, as it was not notarized and contained

14 No. 1-20-0903

no personal knowledge about the case.

¶ 45 In reference to Robert Pasco’s affidavit, the court found cause but no prejudice. The court

noted that Mr. Class “seeks through Pasco to admit the same type of hearsay statements allegedly

made by Elijah Salazar to Milton Correa, that the trial court did not allow, and which decision has

been affirmed.” The court concluded that “Pasco’s affidavit fails to offer any admissible

testimony.”

¶ 46 Finally, in reference to Mr. Stanley’s affidavit, the court concluded that he was not “newly

discovered” as he “could have been produced earlier with due diligence.” The court noted that

“[t]he record is devoid of any efforts to find him and bring him to court except the phrase diligent

efforts.” The court concluded that the affidavit failed to demonstrate actual innocence because it

did not say how long Mr. Stanley had known Mr. Class or how they were acquainted. The court

also emphasized Mr. Stanley’s subsequent statement to the public defender’s investigator that

neither he nor Mr. Class were present for the shooting. In the court’s view, this statement

contradicted his sworn affidavit and supported a finding that the affidavit “does not provide total

vindication or exoneration of petitioner and does not warrant an evidentiary hearing.”

¶ 47 After highlighting the infirmities of each of the affidavits, the circuit court dismissed Mr.

Class’s successive postconviction petition. This appeal followed.

¶ 48 II. JURISDICTION

¶ 49 The circuit court dismissed Mr. Class’s postconviction petition on July 14, 2020, and Mr.

Class timely filed his notice of appeal on July 15, 2020. We have jurisdiction over this appeal,

pursuant to article VI, section 6 of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and

Illinois Supreme Court Rule 606 (eff. Jan. 1, 2023) and Rule 651(a) (eff. July 1, 2017), governing

appeals from final judgments in postconviction proceedings.

15 No. 1-20-0903

¶ 50 III. ANALYSIS

¶ 51 The Act provides a three-stage process for persons serving criminal sentences to “assert

that their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.” People v. Hodges,

(2009).

Generally, the Act contemplates the filing of only one postconviction petition, and section 122-3

of the Act provides that any claim of substantial denial of constitutional rights not raised in the

original or an amended petition is waived. People v. Orange,

(2001); 725

ILCS 5/122-3 (West 2014). However, the procedural bar against successive proceedings will be

relaxed on either of two grounds: (1) “where the petitioner can establish cause and prejudice for

the failure to assert a postconviction claim in an earlier proceeding” or (2) “where the petitioner

asserts a fundamental miscarriage of justice based on actual innocence.” People v. Robinson,

. Where, as here, a request for leave to file a successive petition is granted, the

petition is docketed for second-stage proceedings. Id. ¶ 43.

¶ 52 The second stage of postconviction review tests the legal sufficiency of the petition. People

v. Domagala,

. At this stage, “all well-pleaded facts that are not positively

rebutted by the trial record are to be taken as true.” People v. Pendleton,

(2006). The State is permitted to file responsive pleadings, and the circuit court must determine

“whether the petition and any accompanying documentation make a substantial showing of a

constitutional violation.” People v. Edwards,

(2001). Such a showing exists

when the petitioner’s well-pleaded allegations of a constitutional violation would entitle them to

relief if proven at a subsequent evidentiary hearing. Domagala,

. “Where, as

here, the circuit court dismisses a defendant’s postconviction petition at the second stage after

finding no substantial showing of a constitutional deprivation has been made, review of the

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dismissal is de novo.” People v. Dupree,

.

¶ 53 For the reasons that follow, we agree with Mr. Class that he has made a substantial showing

of actual innocence, and we therefore remand this case for a third-stage evidentiary hearing. This

holding makes it unnecessary for us to consider Mr. Class’s alternative claim that he received

unreasonable assistance from postconviction counsel.

¶ 54 To establish an actual innocence claim, the supporting evidence must be (1) newly

discovered, (2) material and not merely cumulative, and (3) “of such conclusive character that it

would probably change the result on retrial.” People v. Edwards,

. Newly

discovered means “the evidence was discovered after trial and could not have been discovered

earlier through the exercise of due diligence.” People v. Coleman,

. Evidence

is material if it is “relevant and probative of the petitioner’s innocence”; it is noncumulative if it

“adds to what the jury heard.”

Evidence is conclusive if it “would probably lead to a different

result” when considered along with the trial evidence.

¶ 55 As our supreme court explained in Robinson,

, “[u]ltimately, the

question is whether the evidence supporting the postconviction petition places the trial evidence

in a different light and undermines the court’s confidence in the judgment of guilt.” To meet this

standard, the new evidence “need not be entirely dispositive” (id.); it “need only be conclusive

enough to probably change the result upon retrial” (emphases in original) (People v. Davis,

). In other words, “[p]robability, rather than certainty, is the key in

considering whether the fact finder would reach a different result after considering the prior

evidence along with the new evidence.” Robinson,

. As we are dealing with

probabilities, the task of the court is essentially to make a prediction about “what another jury

would likely do, considering all the evidence, both new and old, together.” Coleman, 2013 IL

17 No. 1-20-0903

113307, ¶ 97.

¶ 56 Making such a prediction requires what our supreme court has referred to as a

“comprehensive approach.”

The purpose of this holistic analysis is not to “redecide the

defendant’s guilt,” but to determine whether all the facts and surrounding circumstances should be

“ ‘scrutinized more closely.’ ”

(quoting People v. Molstad,

(1984)). This

entails looking at all of the new evidence cumulatively and then weighing it against the strength

of the evidence at trial. See, e.g., People v. Ayala,

(concluding

that “[a]ffidavits from over half a dozen witnesses who contradict[ed] elements of [the State’s

witness’s] account [were] sufficiently conclusive to alter the result on retrial, particularly given

the weakness of the State’s case at trial”); People v. Serrano,

(petitioner’s new evidence, which demonstrated some “consistency on key details” weighed

against “flimsy” trial evidence.”).

¶ 57 The fundamental problem with the trial court’s analysis in its order granting the State’s

motion to dismiss Mr. Class’s petition is that, rather than employing the comprehensive review

described above—an analysis that considers all of the evidence, “both new and old together”—it

employed a piecemeal approach, assessing each of the affidavits individually and finding that none

of them, standing alone, was sufficient to make the necessary showing of actual innocence.

¶ 58 We also note that the trial court entered its order on July 14, 2020, less than a month after

our supreme court issued its decision in Robinson,

, where it endorsed

the standard elaborated above (supra, ¶ 55) and explicitly disavowed the more demanding “total

vindication or exoneration” standard some circuit and appellate courts had relied on when

weighing the sufficiency of evidence in support of claims of actual innocence. Robinson changed

the calculus of what is required to advance a colorable claim of actual innocence and that change

18 No. 1-20-0903

is not reflected in the trial court’s reasoning.

¶ 59 In support of this piecemeal approach the trial court cited People v. Jones,

, as modified on denial of reh’g (May 24, 2004) for the proposition that the cause and prejudice

test must be applied to individual claims, not to the petition as a whole. Jones is simply not

instructive here. As our supreme court has made clear, where a petitioner “sets forth a claim of

actual innocence in a successive postconviction petition, the defendant is excused from showing

cause and prejudice.” People v. Ortiz,

(2009). Thus, Mr. Class did not need to

show cause and prejudice on his actual innocence claim.

¶ 60 More importantly, while each claim in a successive petition must be analyzed separately,

and the petitioner must make a showing of cause and prejudice on every non-innocence claim they

advance, actual innocence is but one claim and it is a claim that our supreme court has made clear

requires a comprehensive approach. Coleman,

. Thus, there was no basis for

the trial court to analyze each of the affidavits in isolation and dismiss the petition based on its

view that none of the affidavits, standing alone, could make a substantial showing of actual

innocence.

¶ 61 We recognize that on appeal Mr. Class also appears to have taken a piecemeal approach,

focusing his argument primarily on the affidavit of William Sanchez, while neglecting to discuss

in significant detail the other affidavits he attached to his successive petition, or the ways in which

those affidavits corroborate each other and some of the trial testimony. To the extent that the State

might suggest forfeiture in this approach, we reject such an argument.

¶ 62 Parties must preserve issues or claims for appeal, not arguments. Brunton v. Kruger,

. Mr. Class has consistently presented his claim of actual innocence and

consistently contended that he has made a sufficient showing to warrant a third-stage hearing.

19 No. 1-20-0903

While the specific arguments he has marshalled in support of his claim have relied on different

affidavits at different procedural junctures, the claim itself has remained constant.

¶ 63 Furthermore, forfeiture and waiver are limitations on the parties, not on the court, and we

have long recognized that “we may address an otherwise waived [forfeited] issue to ensure a just

result.” People v. Mosley,

. Thus, we need not limit our analysis to

the Sanchez affidavit, and, in assessing Mr. Class’s claim, we will address the evidence presented

by his petition in the comprehensive manner that the law requires.

¶ 64 Upon reviewing all of the evidence, “new and old together,” we are struck by the fact that

Heather Ambrose was the sole witness that tied Mr. Class to this murder. There was no physical

evidence inculpating Mr. Class, and while several other witnesses testified as to a general sequence

of events the night of the murder, none identified Mr. Class as the shooter or placed him anywhere

near the scene of the crime at the approximate time of the shooting. Mr. Class came onto the radar

of law enforcement as a potential suspect only after they had spoken with Ms. Ambrose and Mr.

Salazar. Furthermore, unlike Ms. Ambrose or Mr. Salazar, who had left Chicago by the time police

tracked them down as persons of interest in the homicide investigation, there is no indication that

Mr. Class ever went into hiding after the shooting or attempted to flee to another jurisdiction. The

most that can be said is that the officers testified that Mr. Class tried to leave through a back door,

when the officers came to arrest him at his daughter’s birthday party—a charge that Mr. Class

denied at trial.

¶ 65 It appears undisputed that Mr. Class never made any out-of-court statements

acknowledging involvement in this shooting to the police, and there is no evidence in this record

that he made any such statement to anyone else. He has maintained his innocence from the outset,

testifying that he was not present at the shooting. He also provided a plausible explanation as to

20 No. 1-20-0903

why Heather Ambrose might have named him as the shooter, considering their confrontation the

day before the shooting.

¶ 66 As for his new evidence, Mr. Class attached to his successive petition five affidavits (from

William Sanchez, Onyx Santana, Eugene Horton, Robert Pasco, and Christopher Stanley). He also

supplemented his petition to include the affidavits from alibi witnesses that he had attached to his

initial petition. We note at the outset that some of this evidence was correctly discounted by the

trial court because it was not newly discovered.

¶ 67 The affidavit from Onyx Santana, for example, while certainly material to the question of

Mr. Class’s innocence, does not meet the criteria for newly discovered evidence because Mr. Class

could have discovered her before trial with the exercise of due diligence. The record shows that

she was known to him at trial—her name came up during his direct examination and she was

mentioned in a discoverable, handwritten statement from Eli Salazar that the State possessed. Mr.

Class provides no explanation for why he failed to call her to testify on his behalf at trial. The

affidavits from his alibi witnesses—which the court did not mention in its order dismissing his

successive petition—fail for the same reason. Mr. Class was obviously aware of these witnesses

at trial (they are his family members), but his trial attorney made the decision not to call them to

testify on his behalf. He cannot now say that they are newly discovered.

¶ 68 The court was also correct in its assessment of the Eugene Horton affidavit. While Mr.

Horton’s affidavit may have met the criteria for newly discovered, it lacks any probative value on

the question of Mr. Class’s innocence, and thus does not support Mr. Class’s claim.

¶ 69 However, the remaining affidavits (from Mr. Stanley, Mr. Pasco, and Mr. Sanchez) are all

newly discovered, material, and, taken as true, support Mr. Class’s claim of innocence. When read

together and weighed against the unusually scant trial evidence, these affidavits raise serious

21 No. 1-20-0903

questions about Mr. Class’s guilt that undermine this court’s confidence in his conviction.

¶ 70 Two of these affidavits are from witnesses who saw Tony Koniewicz get shot and

affirmatively say that Mr. Class was not the shooter. One of those witnesses, Mr. Stanley, claimed

to have been with the shooters when they shot Mr. Koniewicz, although he backpedaled in a

subsequent statement and told the public defender’s investigator that neither he, nor Mr. Class,

were in the car. Mr. Sanchez said, in his affidavit, that the person who shot at the red car and killed

Mr. Koniewicz was light-skinned and “almost white.” He also says that he knows that Mr. Class

did not have anything to do with the shooting.

¶ 71 The third of these new witnesses to provide an affidavit was Mr. Pasco, who averred that,

on the day after the murder, Eli Salazar admitted to him that he was the one who killed Mr.

Koniewicz and boasted to him that he “finally got C-note Tuggie last night.” We are aware that at

his original trial, Mr. Class’s attorney attempted to put on another witness—Milton Correa—who

would have testified to a very similar admission by Mr. Salazar soon after the shooting.

¶ 72 Certain details from the Stanley and Pasco affidavits are internally consistent with and lend

support to each other. For example, Mr. Pasco claimed in his affidavit that when Mr. Salazar

admitted to him the day after the murder that he was the shooter, he also mentioned that he had

been at Onyx Santana’s house before the shooting, with Ms. Ambrose and “Black Christopher.”

Mr. Stanley, in his own affidavit, does not mention Onyx Santana, but he does admit to being in

the car with Ms. Ambrose and Mr. Salazar during the shooting. Reading these two statements

together, it is not unreasonable to presume that “Black Christopher” is a nickname for Christopher

Stanley. Further, both of these affidavits support an inference that there were three individuals in

the car who fired upon Mr. Koniewicz and that Mr. Class was not one of them.

¶ 73 Rather than analyze all this evidence in the holistic manner that the law requires, the trial

22 No. 1-20-0903

court assessed these affidavits in isolation, combing each one for evidentiary infirmities and

potential credibility issues and minimizing any probative value it might contain. For example, the

court dismissed Mr. Pasco’s statement as “the same kind of hearsay statement” that the court had

refused to admit at trial (alluding to the Correa testimony). But even if Mr. Pasco’s affidavit

contained hearsay, the court nonetheless had an obligation to consider the substance of the

statement in evaluating Mr. Class’s claim. At the second stage, the court cannot disregard evidence

merely because it is hearsay. See People v. Velasco,

(explaining that unlike a third-stage evidentiary hearing, where a defendant no longer enjoys the

presumption that the allegations in their petition and accompanying affidavit are true, at the

second-stage, hearsay evidence is admissible and “must be taken as true”); see also People v. Shaw,

(noting that while historically, there was a general rule that

“hearsay is insufficient to support a petition under the Act,” that rule was undermined by a 2013

amendment to Illinois Rule of Evidence 1101(b)(3) (eff. Apr. 8, 2013) (where our supreme court

added “postconviction hearings” to the list of “[m]iscellaneous [p]roceedings” to which the rules

of evidence “do not apply” (emphasis omitted))).

¶ 74 Relatedly, the court completely disregarded the testimony of Christopher Stanley on the

basis of what amounted to a credibility determination. In the court’s view, Mr. Stanley’s

subsequent statement to a Public Defender’s investigator, although Mr. Stanley acknowledged that

he had signed the affidavit, “was a direct contradiction of his sworn affidavit” where he had stated

that “he was present, saw the shooting, and that Elijah Salazar was the shooter.” At this stage of

the postconviction process, however, prior to a third-stage evidentiary hearing, the court does not

consider credibility. See Domagala,

(explaining that the third stage, not

the second stage, is when the court must “determine witness credibility, decide the weight to be

23 No. 1-20-0903

given testimony and evidence, and resolve any evidentiary conflicts.”).

¶ 75 The court also rejected Mr. Stanley’s testimony on the separate basis that, in its view, it

was not technically newly discovered evidence because he was known to Mr. Class at trial and

could have been produced with due diligence. The court noted that “[t]he record is devoid of any

efforts to find him and bring him to court except the phrase ‘diligent efforts.’ ” We do not think,

however, that the record supports this determination. In advancing an actual innocence claim, it is

the evidence in support of the claim that must be “newly discovered,” not necessarily the source.

People v. Fields,

. Thus, “an affidavit from a witness may be newly

discovered, even when the defense knew of the witness prior to trial.”

(citing People v. White,

). Further, “[n]ewly discovered evidence” includes testimony from

a witness who essentially made himself unavailable as a witness out of fear of retaliation. Ayala,

(citing Ortiz,

).

¶ 76 Here, in contrast to Onyx Santana, where the record is seemingly devoid of any efforts to

have her testify at Mr. Class’s trial, the record contains several references to Mr. Class’s trial

counsel trying, but ultimately failing, to produce Mr. Stanley at trial. Trial counsel asked for

several continuances, repeatedly delaying the start of his case-in-chief and claiming his

investigators needed more time to locate a witness. This witness later turned out to be Mr. Stanley,

who trial counsel referred to as a “crucial witness” without whom he did not want to continue

presenting his case. At one appearance, counsel stated that Mr. Stanley had “decided to disappear

on us.” For his part, Mr. Stanley stated in his affidavit that he did not come forward sooner because

he was scared for his life, a statement which, taken as true, explains his evasiveness leading up to

Mr. Class’s trial and suggests that he effectively “made himself unavailable.” In our view, there is

enough in the record to support Mr. Class’s claim that Mr. Stanley could not be produced to testify

24 No. 1-20-0903

at trial, despite defense counsel’s diligent efforts. We therefore find that Mr. Stanley’s affidavit

meets the criteria for newly discovered evidence.

¶ 77 As for the Sanchez affidavit, the court disregarded it on the basis that it “did not state that

the shooter, who he described as light-skinned, was not a person who fit petitioner’s description.”

However, Mr. Sanchez’s affidavit does clearly state that he observed the shooting and that he knew

“that Angel Class did not have anything to do with the shooting that took place on October 22,

2001.”

¶ 78 Mr. Sanchez does not explain how he came to know Angel Class or why he remembers

this incident so many years after the fact. It is also confusing that he never expressly says that the

shooter was not Angel Class or that Angel Class is not “light-skinned” or “almost white.”

¶ 79 The Sanchez affidavit also presents a time for this shooting that may be at odds with some

of the trial testimony, but that testimony offers a broad spectrum of times that this shooting could

have occurred. No witness at trial provided an exact time for the shooting. Heather Ambrose

testified that Mr. Class and Mr. Salazar knocked on her door after 7:00 p.m. and that they then

drove around the neighborhood in her car for some unspecified amount of time before the shooting

occurred; Tammy Scatanese testified that she got a call from the hospital about her brother just

after 9:00 p.m.; Gerard Recasi, who was in the vehicle that was shot at, testified that the shooting

occurred during “evening hours” and that he got to the hospital approximately six minutes after

the shooting; Officer Arroyo testified that at “about 10:00 o’clock” he received an assignment to

go to St. Mary’s hospital; Robert Davie, the forensic investigator, was assigned to go to the crime

scene to begin the homicide investigation at “about 11:00 o’clock”; and Detective Rodriguez, the

lead detective on the case, received an assignment to investigate “a man shot at Ohio and Leavitt”

at approximately 10:40 p.m. Thus, the trial evidence never pinned down a precise time for the

25 No. 1-20-0903

shooting and the 10:00 to 10:30 time frame averred to by Mr. Sanchez is in keeping with some,

but not all, of the trial testimony.

¶ 80 Although there are issues with the Sanchez affidavit, and Mr. Sanchez ultimately fails to

connect all of the dots in his testimony, this affidavit from another person who purports to be an

eyewitness, adds to the testimony of the other two affidavits that the court should have considered.

¶ 81 The evidentiary and credibility issues highlighted by the trial court are significant and need

to be adjudicated, but that is precisely what a third-stage evidentiary hearing is for. At the second

stage, where the court must accept as true all well-pleaded allegations not positively rebutted by

the record, the existence of such issues is not enough to justify dismissal, particularly where, as

here, the cumulative weight of the evidence presented by Mr. Class “places the trial evidence in a

different light and undermines the court’s confidence in the judgment of guilt.” Robinson,

.

¶ 82 While Mr. Class has not conclusively established his innocence, he has made a substantial

showing that his case merits further scrutiny, which is what is demanded of him at this stage. We

therefore reverse the circuit court’s judgment dismissing Mr. Class’s postconviction claim of

actual innocence and remand for a third-stage evidentiary hearing on that claim.

¶ 83 Finally, Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) permits a reviewing

court, in its discretion, to order that a case be assigned to a different judge on remand. See Serrano,

; People v. Tally,

. Pursuant to the

discretion conferred upon us by this rule, we find that the interests of justice would be furthered

by assigning this case to a different judge on remand.

¶ 84 IV. CONCLUSION

¶ 85 For the foregoing reasons, we reverse the dismissal of Mr. Class’s petition, remand for a

26 No. 1-20-0903

third-stage evidentiary hearing, and direct the presiding judge of the criminal division of the circuit

court to assign this case to a new judge for further proceedings.

¶ 86 Reversed and remanded.

27 No. 1-20-0903

People v. Class,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 02-CR- 13513; the Hon. Angela Munari Petrone, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Michael H. Orenstein (Kara Kurland, law student), of State Appellate Defender’s for Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, John E. Nowak, and Andrew D. Yassan, Assistant for State’s Attorneys, of counsel), for the People. Appellee:

28