¶ 24 On appeal, Calhoun contends that his petition presented a colorable claim of actual innocence based on the affidavits of Evans, Banks, and Robinson, which were of such conclusive character that they are likely to change the result on retrial. In support of his argument, Calhoun relies on our recent decision in People v. Smith , 2015 IL App (1st) 140494, 398 Ill.Dec. 540, 44 N.E.3d 569. In Smith , we reversed the second-stage dismissal of Smith's initial postconviction petition and remanded the matter for an evidentiary hearing after concluding that Smith made a substantial showing that the allegations in Evans's affidavit identifying a third person as the shooter constituted newly discovered evidence that would probably change the result on retrial.

Evidence is considered new if it was discovered after trial and is of such character that it could not have been discovered prior to trial by the exercise of due diligence. People v. Smith, 2015 IL App (1st) 140494, ¶ 19 (citing People v. Molstad, 101 Ill. 2d 128, 134 (1984)). Here, Treondous's trial took place in 2003.

In our November 10, 2015 opinion, we reversed the court's dismissal of Smith's petition at the second stage of postconviction proceedings after finding that he had made a substantial showing of actual innocence sufficient to merit an evidentiary hearing. People v. Smith, 2015 IL App (1st) 140494. The trial court has now held that hearing and once again dismissed Smith's petition.

However, the record may supply such facts in some circumstances. See People v. Smith, 2015 IL App (1st) 140494, ¶ 19 ("the record supports the conclusion that [the witness's] recantation qualifies as newly discovered evidence *** no amount of due diligence would have allowed [the petitioner] to secure [the witness's] recantation of his identification prior to trial where [the witness] averred that he believed in the identification's accuracy at that time.").

The "due diligence" requirement for newly discovered evidence applies to the diligence shown before trial. People v. Smith, 2015 IL App (1st) 140494, ¶ 19.

The court does not engage in fact-finding or credibility determinations but must take all well-pleaded facts not positively rebutted by the record as true. People v. Smith, 2015 IL App (1st) 140494, ¶ 21. The second stage tests the legal sufficiency of the petition, which survives dismissal where the allegations would entitle petitioner to relief if proven at an evidentiary hearing.

(Emphasis added.) People v. Smith, 2015 IL App (1st) 140494, ¶ 19; see also People v. Beard, 2023 IL App (1st) 200106, ¶ 49 ("[w]e only consider whether the evidence was discoverable before trial" by diligent defense); People v. Ayala, 2022 IL App (1st) 192484, ¶ 134. Because "[statements of a codefendant" are not "discoverable before trial," they "are considered newly discovered," full stop.

¶ 41 When faced with comparable circumstances, separate panels of this court have reached different conclusions. In People v. Smith, 2015 IL App (1st) 140494, a petitioner supported an actual innocence claim in his amended petition with an affidavit from a witness who recanted his identification of the petitioner at trial. The State argued that the affidavit was not newly discovered, since the petitioner failed to show that he could not have discovered the witness's recantation before the time the witness stated that he contacted the petitioner, which was 11 years after the events in question and 5 years after the trial.

The statement does not say that defendant was not present at the scene of the shooting, that defendant did not commit the shooting, or that Stackhouse saw someone else commit the shooting. See People v. Harper, 2013 IL App (1st) 102181, ¶ 49 (noting that newly discovered evidence is "capable of producing a different outcome at trial" where it is "both exonerating and contradicts the State's evidence at trial"); People v. Molstad, 101 Ill.2d 128, 135-36 (1984) (holding that newly discovered evidence was "likely to produce a different result in the trial" where five codefendants submitted affidavits establishing that the defendant was not present when the crime was committed); People v. Smith, 2015 IL App (1st) 140494, ¶ 23 (finding the conclusive character element met where an eyewitness did not merely deny his earlier identification but exonerated the defendant and named a different perpetrator). In short, nothing about Stackhouse's statement exonerates defendant.

This evidence, taken as true, could arguably lead to defendant's acquittal. See People v. Smith, 2015 IL App (1st) 140494, ¶ 22 (where a witness's testimony was the strongest evidence against the defendant, its recantation had the capacity, if believed, to produce a different result at trial).