People v. Miranda

2023 IL App (1st) 170218-BNo. 1-17-0218
FIRST DIVISION
February 21, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 07 CR 11290
)
JONATHAN MIRANDA, )
) The Honorable
Defendant-Appellant. ) Stanley Sacks,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justices Hyman and C.A. Walker concurred in the judgment and opinion.
OPINION
¶1 Defendant Jonathan Miranda appeals from an order of the circuit court of Cook County
denying him leave to file a successive petition under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2016)). He contends that the circuit court erred in denying
him leave because he presented a colorable claim of actual innocence, and he established cause
and prejudice as to his claim of ineffective assistance of trial counsel. We initially affirmed,
finding that the evidence submitted in support of defendant’s actual innocence claim was
immaterial, not probative of defendant’s innocence, cumulative, and not of a sufficiently
conclusive character. We also concluded that defendant could not establish cause for failing to
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raise his claim of ineffective assistance of trial counsel in his initial postconviction petition.
See People v. Miranda, 2018 IL App (1st) 170218.
¶2 On September 30, 2020, our supreme court denied defendant’s petition for leave to appeal,
but entered a supervisory order directing us to vacate our judgment and to consider the effect
of People v. Robinson, 2020 IL 123849, on the issue of whether defendant presented a
colorable claim of actual innocence. See People v. Miranda, No. 123466 (Ill. Sept. 30, 2020).
Upon reconsideration, we note that although Robinson provides clarification of one element of
an actual innocence claim, it does not change our ultimate conclusion that defendant did not
present a colorable claim of actual innocence. In addition, our determination regarding
defendant’s claim of ineffective assistance of trial counsel stands. Therefore, we affirm the
circuit court’s judgment.
¶3 BACKGROUND
¶4 In 2007, defendant and his cousins, Jason and Wellington Jaramillo, 1 were charged by
indictment with multiple counts of aggravated discharge of a firearm, home invasion,
aggravated battery with a firearm, armed violence, aggravated battery, aggravated unlawful
restraint, and aggravated unlawful use of a weapon.
¶5 On March 10, 2009, defendant and his cousins entered negotiated pleas of guilty to
aggravated discharge of a firearm in exchange for the dismissal of the other charges and agreed
prison terms of 10 years for defendant and 15 years for his cousins with the express
understanding they would be eligible to receive day-for-day good-conduct credit. Before
entering judgments of conviction and imposing sentences, the trial court admonished defendant
and his cousins of their appeal rights in accordance with Illinois Supreme Court Rule 605(c)
1
Jason and Wellington are not parties to this appeal.
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(eff. Oct. 1, 2001). The trial court addressed defendant, commenting that he was “pretty lucky”
because when his cousins “went into the house *** and shot that guy, they didn’t kill him”;
otherwise, he would be facing a minimum sentence of 35 years’ imprisonment. The trial court
then informed defendant and his cousins, inter alia, that before taking an appeal, and “within
30 days of today’s date,” they must each file a written motion asking that the judgment be
vacated and for leave to withdraw the guilty plea stating the reasons for doing so. Defendant
and his cousins acknowledged that they understood the trial court’s admonishments.
¶6 Sometime thereafter, the trial court received a letter from defendant’s mother saying that
her son “was doing 85 percent” of his 10-year sentence to which he had agreed with the
understanding that he would be eligible to receive day-for-day good-conduct credit. On June
4, 2009, 86 days after defendant and his cousins entered negotiated guilty pleas to aggravated
discharge of a firearm, attorneys for defendant and his cousins appeared before the trial court
and reformed the plea agreement so the parties, including the State, received the originally
bargained-for benefits. Pursuant to this agreement, the trial court reduced defendant’s sentence
from “10 years contemplating he would do that 10 at 50 percent” to “70 months” at 85%. The
trial court issued a corrected mittimus nunc pro tunc to March 10, 2009, the date of the
negotiated guilty plea and the initial mittimus.
¶7 Twenty-eight days later, on July 2, 2009, defendant, represented by new attorneys, filed a
motion to withdraw his plea of guilty and vacate judgment. After a hearing, the trial court
granted the motion, reinstated the charges previously dismissed, and remanded defendant to
the custody of the Cook County jail without bond.
¶8 Defendant proceeded to a jury trial in 2010. The jury found defendant guilty of home
invasion and aggravated battery with a firearm. The trial court then sentenced defendant to
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consecutive terms of 21- and 6-years’ imprisonment, respectively. A full recitation of the
evidence presented at trial can be found in our decision on direct appeal. See People v.
Miranda, 2012 IL App (1st) 103360-U.
¶9 On direct appeal, we affirmed the judgment entered on defendant’s convictions over his
challenge to the sufficiency of the evidence and to the propriety of the State’s rebuttal
argument. Miranda, 2012 IL App (1st) 103360-U. As to the sufficiency of the evidence, we
found there was sufficient evidence allowing a reasonable trier of fact to conclude that
defendant had knowledge of his cousins’ criminal purpose and acted with intention to aid his
cousins in the commission of their offenses against Froylan Lopez, a known narcotics dealer.
Id. ¶ 51. Specifically, we found sufficient evidence to support defendant’s convictions under
accountability principles despite defendant’s trial testimony that he remained at home with his
girlfriend, mother, and sister the night before the shooting and his brother’s testimony that he,
and not defendant, drove the Oldsmobile that narcotics surveillance officers observed circle
Lopez’s house. Id. ¶¶ 51-53. Defendant’s undisputed presence as a getaway driver outside
Lopez’s house on the date in question, his flight with his cousins after they shot Lopez, and
circumstantial evidence of defendant’s prior knowledge of his cousins’ criminal design
established defendant’s accountability for the home invasion and aggravated battery of Lopez
with a firearm. Id. We noted that, although defendant testified at trial that he believed he was
driving his cousins to a job interview, there was circumstantial evidence otherwise. Id. ¶ 52.
For instance, the night before the shooting, police intercepted a call wherein Jason told Luis
Diaz, who owed the victim money for drugs seized by police, that he and Wellington were
going to pay their cousin $1000 “just to drive,” and Jason mentioned that his cousin drove a
small expensive car. Id. Coincidentally, defendant testified at trial that he drove his cousins to
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Lopez’s house in an Audi TT, which he described as a small sports coupe. Id. As to the
propriety of the State’s rebuttal argument, we noted that the prosecutor was entitled to
comment on defendant’s failure to call his girlfriend, mother, and sister to support an alibi
defense because defendant injected their existence into the case, and we ultimately found the
prosecutor’s comments were reasonable inferences based on the evidence presented at trial and
did not impermissibly shift the burden of proof onto defendant or deprive him of a fair trial
and warrant reversal of his convictions. Id. ¶ 60.
¶ 10 In 2013, defendant filed a pro se postconviction petition seeking to vacate his jury
convictions and sentences for home invasion and aggravated battery with a firearm, or
alternatively to reinstate his 10-year sentence for aggravated discharge of a firearm under the
original plea agreement. Defendant alleged in his petition that he received ineffective
assistance of plea counsel, who misinformed him that if he pled guilty to aggravated discharge
of a firearm, he would be sentenced to 10 years’ imprisonment to be served at 50% and that
“after all of [his] good time was accumulated, [he] would only serve 2½ to 3 years in jail.”
Defendant also alleged that trial counsel 2 was ineffective for failing to call “all of the witnesses
who were available to testify” on his behalf, and “[t]his failure allowed the prosecution to argue
to the jury in rebuttal that [he] had not presented witnesses to support [his] theory of the case.”
¶ 11 The circuit court summarily dismissed the petition as frivolous and patently without merit
in a written order. In rejecting defendant’s assertion that plea counsel’s actions started a “chain
of events” that ended with a 27-year prison sentence, the circuit court found that the actual
chain of events that led to defendant’s 27-year imprisonment started with the home invasion
Defendant was represented by attorney Joseph DiNatale during the plea proceedings and attorneys
2
Mark Kusatzky and Gus Santana thereafter and during trial.
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and shooting of Lopez and that he voluntarily chose to withdraw his plea of guilty and go to
trial. In rejecting defendant’s claim that trial counsel was ineffective for failing to call all of
the witnesses available to testify on his behalf, the circuit court found that defendant failed to
attach any affidavits from those witnesses or indicate what the substance of their testimony
would be. The circuit court further found that the issue was barred by the doctrine of
res judicata because it was previously decided against defendant on direct appeal.
¶ 12 We affirmed the summary dismissal of defendant’s pro se petition, finding that the parties’
conduct revested the trial court with jurisdiction to consider defendant’s untimely motion to
withdraw his guilty plea and that defendant failed to present an arguable claim that trial counsel
was ineffective for failing to call his mother and sister as a witness to corroborate his defense
where there were no supporting affidavits or an explanation for their absence. People v.
Miranda, 2016 IL App (1st) 131551-U, ¶¶ 24-25, 27-29.
¶ 13 In 2015, defendant filed a pro se “Complaint for Mandamus,” alleging that the circuit court
judge who granted defendant’s motion to withdraw his guilty plea and vacate judgment lacked
jurisdiction to do so. The circuit court denied defendant leave to file the complaint for
mandamus, and on appeal therefrom, we affirmed the denial of leave after granting appointed
counsel leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v.
Miranda, No. 1-15-2583 (2017) (unpublished summary order under Illinois Supreme Court
Rule 23(c)).
¶ 14 On November 17, 2016, defendant, represented by attorney Richard Dvorak, 3 filed the
subject motion for leave to file a successive postconviction petition, along with the proposed
petition. In his motion, defendant asserted he could establish cause and prejudice to raise a
3
Mr. Dvorak also represents defendant in this appeal.
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claim of ineffective assistance of counsel because his initial postconviction petition was
defective “due to misrepresentations made to him by his appellate counsel and that appellate
counsel engaging in an impermissible ‘ghost writing’ of the petition, and that those defects
were therefore not caused by [defendant], and that he was prejudiced due to the claims not
being raised.” Defendant also asserted he was excused from showing cause and prejudice in
presenting claims of newly discovered evidence and actual innocence.
¶ 15 In his successive petition, defendant stated that he sought postconviction relief based on
claims of ineffective assistance of trial counsel, newly discovered evidence, and actual
innocence. Defendant acknowledged the requirement that he show cause for failing to raise the
ineffective assistance of trial counsel claim in the initial postconviction petition and prejudice
resulting therefrom. He argued “[b]ecause the [defendant]’s initial post-conviction counsel
made representations that he could file the Petition as-is, rather than informing the [defendant]
that he needed affidavits, the [defendant] was caused to file a defective initial Petition.”
¶ 16 On the merits, defendant first argued that he was prejudiced by trial counsel’s failure to
call as witnesses Luis Madrid, Kayla Rincon, and Stephanie Araujo, considering the “available
testimony discussed” in their supporting affidavits. Specifically, Madrid averred that on April
24, 2007, he accompanied Arthuro Miranda, defendant’s younger brother, to his cousins’ house
in Berwyn, whereupon Arthuro agreed to drive his cousins to a friend’s house in Melrose Park.
There, Arthuro circled the block twice before Wellington walked around the house and
reported that his friend was not answering his calls. Madrid further averred that he would have
testified had defendant’s attorneys asked him.
¶ 17 Defendant’s sister, Rincon, averred that on April 24, 2007, defendant came home after
work and stayed home the entire night. Rincon watched television in the kitchen with her
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mother, defendant, and defendant’s girlfriend, Araujo, until 10 p.m. when she went to bed.
Rincon further averred that she took time off school to be present at the courthouse during
defendant’s trial because attorneys told her they expected to call her as a witness, but that did
not happen.
¶ 18 Defendant’s girlfriend, Araujo, averred that on April 24, 2007, she was with defendant at
his house from 8 p.m. to midnight. She recalled that defendant’s mother and sister were present,
but she could not remember whether defendant’s younger brother and his friend Madrid were
present. Araujo further averred that she was available to testify at defendant’s trial but was
never asked to do so.
¶ 19 Defendant next contended that newly discovered evidence comprised of affidavits from his
cousins, Jason and Wellington, showed that he is actually innocent, citing People v. Williams,
2012 IL App (1st) 111145, abrogated on other grounds, People v. Davis, 2014 IL 115595. The
cousins averred in strikingly similar affidavits that on April 25, 2007, Wellington asked
defendant to drive him and Jason to a job interview with a person who owned a landscaping
business in Melrose Park, that Jason and Wellington were carrying firearms concealed in their
pants or waistband, and that they never told defendant about their plan to commit a crime. The
cousins acknowledged that the police intercepted a telephone call wherein Jason stated he and
Wellington were going to recruit one of their cousins to be a getaway driver for $1000 but
claimed that was a lie they told Diaz, who owed Lopez money for drugs that had been seized
by police.
¶ 20 On January 6, 2017, the circuit court entered a written order denying defendant leave to
file his successive postconviction petition. Regarding defendant’s claim of actual innocence,
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the circuit court found that the affidavits 4 of Jason and Wellington did not support a cognizable
claim of actual innocence. The circuit court stated that “[w]hile their testimony constitutes
newly discovered evidence based on their averments that they would have refused to testify
due to fear of incriminating themselves, People v. Molstad, 101 Ill. 2d 128, 135 (1984), it does
not satisfy the remaining elements necessary for a freestanding claim of actual innocence.”
The circuit court noted their proposed testimony was cumulative because defendant had
testified about the facts set forth in his cousins’ affidavits. The circuit court further noted the
proposed testimony of defendant’s cousins was not so conclusive that it would probably change
the result on retrial because Jason and Wellington’s allegation that they did not inform
defendant about the crime before his involvement was insufficient to offer “the total
vindication and exoneration necessary for an actual innocence claim since [defendant] was still
present and involved in the crime under their version of the events.”
¶ 21 Regarding defendant’s claim that trial counsel was ineffective for failing to call his sister
Rincon as a witness, the circuit court found the claim was barred by res judicata as it was
dismissed as meritless in defendant’s initial postconviction petition and the appellate court
affirmed that decision on appeal (Miranda, 2016 IL App (1st) 131551-U). As to defendant’s
claim that trial counsel was ineffective for failing to call Madrid and Araujo, the circuit court
found that defendant failed to demonstrate cause for his failure to raise the claim in his initial
postconviction petition, noting in a footnote that defendant “attempts to argue that he received
ineffective assistance of post-conviction counsel because counsel did not obtain necessary
affidavits from the prospective witnesses. However, this argument is unavailing as there is no
4
Defendant correctly points out that the circuit court also discussed the affidavits of Madrid, Araujo,
and Rincon in the context of his actual innocence claim although those affidavits were submitted in support
of his ineffective assistance of counsel claim.
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constitutional right to effective assistance of post-conviction counsel.” The circuit court also
found that defendant failed to demonstrate prejudice because his underlying argument was
meritless. The circuit court reasoned that defendant failed to show that trial counsel’s
performance was deficient with respect to Jason and Wellington because they averred that no
amount of due diligence from counsel would have secured their testimony at defendant’s trial.
The circuit court added that defendant nevertheless failed to demonstrate prejudice resulting
from trial counsel’s failure to call Madrid, Rincon, Araujo, and defendant’s cousins because
their proposed testimony would not have changed the outcome.
¶ 22 ANALYSIS
¶ 23 On appeal, defendant first contends that the circuit court erred in denying him leave to file
a successive postconviction petition because he presented a colorable claim of actual
innocence. We review the denial of defendant’s motion for leave to file a successive
postconviction petition de novo (People v. Bailey, 2017 IL 121450, ¶ 13), and we may affirm
that decision on any ground of record (People v. Johnson, 208 Ill. 2d 118, 129 (2003)).
¶ 24 The Act provides a statutory, collateral remedy to defendants who claim their constitutional
rights were substantially violated at trial. People v. Edwards, 2012 IL 111711, ¶ 21 (citing
People v. Eddmonds, 143 Ill. 2d 501, 510 (1991)); People v. Kokoraleis, 159 Ill. 2d 325, 328
(1994). For that reason, claims that could have been, but were not, raised on direct appeal are
forfeited, and claims that were addressed on direct appeal are barred by res judicata. People v.
Viramontes, 2017 IL App (1st) 160984, ¶ 59.
¶ 25 Successive postconviction petitions, like the one at bar, are disfavored under the Act.
People v. Jones, 2017 IL App (1st) 123371, ¶ 41. However, the bar against successive petitions
will be relaxed if defendant establishes “cause and prejudice” for the failure to raise a claim in
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the initial postconviction petition (725 ILCS 5/122-1(f) (West 2016)) or actual innocence under
the “fundamental miscarriage of justice” exception. Edwards, 2012 IL 111711, ¶¶ 22-23;
People v. Brown, 2017 IL App (1st) 150132, ¶ 36. It is incumbent upon defendant to first obtain
“leave of court” to institute a postconviction proceeding. Edwards, 2012 IL 111711, ¶ 24. In
the context of an actual innocence claim, “leave of court should be denied only where it is
clear, from a review of the successive petition and the documentation provided by the petitioner
that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.”
Id. Put another way, leave should be granted when defendant’s supporting documentation
raises the probability that “ ‘it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’ ” Id. (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)).
¶ 26 “Where, as here, a defendant’s successive petition makes a claim of actual innocence, such
a claim may only be considered if the evidence in support of the claim was newly discovered,
material to the issue and not merely cumulative of other trial evidence, and of such a conclusive
character that it probably would change the result on retrial.” Jones, 2017 IL App (1st) 123371,
¶ 43. Newly discovered evidence refers to evidence discovered after trial that could not have
been discovered sooner by defendant through due diligence. Id. On the other hand, evidence is
not newly discovered “when it presents facts already known to a petitioner at or prior to trial,
though the source of those facts may have been unknown, unavailable, or uncooperative.”
Brown, 2017 IL App (1st) 150132, ¶ 42. “Material evidence is relevant and probative of the
defendant’s innocence,” whereas cumulative evidence adds nothing to what the jury already
heard. Jones, 2017 IL App (1st) 123371, ¶ 43. Finally, conclusive evidence is the most
important element of an actual innocence claim (see People v. Washington, 171 Ill. 2d 475,
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489 (1996)), and this court “ ‘must be able to find that petitioner’s new evidence is so
conclusive that it is more likely than not that no reasonable juror would find him guilty beyond
a reasonable doubt.’ ” People v. Williams, 2016 IL App (1st) 133459, ¶ 52 (quoting People v.
Sanders, 2016 IL 118123, ¶ 47).
¶ 27 In Robinson, although our supreme court agreed with the above-quoted standard for the
conclusive-character element, it offered further guidance on how we are to apply this standard.
The court explained that newly discovered evidence need not totally vindicate or exonerate the
defendant. Robinson, 2020 IL 123849, ¶¶ 55-56. According to the Robinson court,
“the new evidence supporting an actual innocence claim need not be entirely dispositive to
be likely to alter the result on retrial. [Citation.] Rather, the conclusive-character element
requires only that the petitioner present evidence that places the trial evidence in a different
light and undermines the court’s confidence in the judgment of guilt.” Id. ¶ 56.
“Probability, 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.” Id. ¶ 48.
¶ 28 Although we take note of the clarification given by our supreme court, we conclude that it
does not affect our initial determination that defendant failed to state a colorable claim of actual
innocence. As we previously concluded, the proposed testimony of the cousins, that they lied
to Diaz about paying one of their cousins $1000 to be their getaway driver and did not reveal
their criminal plan to defendant, is immaterial because such testimony is irrelevant and not
probative of defendant’s innocence under an accountability theory. Rather, the proposed
testimony is cumulative because the jury heard defendant’s testimony that he believed he was
driving his cousins to a job interview and was not aware of their criminal plan. Defendant
contends that the fact the cousins lied to Diaz about paying one of their cousins $1000 to be
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their getaway driver could not be cumulative of evidence already presented, because such a
fact could not be testified to or inferred from the testimony of anyone other than the cousins.
We disagree. Defendant’s denial that he believed he was driving his cousins to a job interview
and was unaware of their criminal plan necessarily implies that any statement to the contrary,
i.e., that the cousins paid him $1000 to be their getaway driver, was false.
¶ 29 Because we conclude that the proposed testimony from the cousins would have been
cumulative of evidence already presented at trial, defendant’s claim of actual innocence must
fail. Given that, we need not make a determination on the other two elements—whether the
evidence was newly discovered and of a conclusive character. Accordingly, although we
recognize that Robinson offered clarification of the standard to be applied to the conclusive-
character element that was unavailable to us at the time of our initial determination, because
we need not even reach the conclusive-character element, the decision in Robinson does not
impact our ultimate determination on defendant’s actual innocence claim. We hold that the
circuit court did not err in denying defendant leave to file his successive postconviction actual
innocence claim, because the proposed testimony of defendants’ cousins was cumulative of
the trial evidence.
¶ 30 Defendant next contends that he established cause and prejudice as to his claim of
ineffective assistance. He argues cause for failing to raise the ineffectiveness of trial counsel
in his initial postconviction petition based on the “ineffective assistance of post-conviction
counsel.” He faults the attorney who “ghost-wrote” his initial, pro se postconviction petition
for failing to inform him that supporting affidavits were required to survive summary
dismissal. He then argues prejudice resulting from trial counsel’s failure to call Madrid,
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Rincon, and Araujo, whose testimony would have weakened the inference that he knew all
along about his cousins’ criminal plan and actively participated in the furtherance thereof.
¶ 31 “Cause” refers to any objective factor that impeded a defendant’s ability to raise a specific
claim in the initial postconviction proceeding. People v. Pitsonbarger, 205 Ill. 2d 444, 462
(2002). “Prejudice” refers to an error that so infected the entire trial that the resulting conviction
violates due process. Davis, 2014 IL 115595, ¶ 14; People v. Flores, 153 Ill. 2d 264, 279
(1992).
¶ 32 Here, defendant cannot establish cause for failing to raise the ineffective assistance of trial
counsel in his initial, pro se petition, based on the alleged ineffective assistance of
postconviction counsel because neither the Act, nor Illinois Supreme Court Rule 651(c) (eff.
Dec. 1, 1984), provides any basis for a standard of legal representation at the first stage of
postconviction proceedings. People v. Shipp, 2015 IL App (2d) 131309, ¶ 16. We observe that
“Rule 651 applies to counsel appointed or retained after a pro se petition, but not to counsel
that was privately retained by the prisoner to file the initial petition,” as in the case at bar.
(Emphasis added.) People v. Zareski, 2017 IL App (1st) 150836, ¶ 51 (citing People v. Cotto,
2016 IL 119006, ¶ 41). We also acknowledge defendant’s reliance on People v. Nicholas, 2013
IL App (1st) 103202, and People v. Warren, 2016 IL App (1st) 090884-C, for the proposition
that the deficient performance of postconviction appellate counsel may constitute cause.
However, we remain unpersuaded as those cases concern counsel who represented the
defendant on appeal from the summary dismissal of an initial, pro se postconviction petition,
which is not the case here. We also find that defendant cannot demonstrate prejudice resulting
from trial counsel’s failure to call Madrid, Rincon, and Araujo, based on their supporting
affidavits. The witnesses’ proposed testimony involves the day before the shooting of Lopez
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and, at best, suggests that defendant did not drive around Lopez’s house the previous night.
Under these circumstances, we cannot find the fact that trial counsel did not call these witnesses
at trial constituted an error that so infected the entire trial that the resulting conviction violates
due process. Davis, 2014 IL 115595, ¶ 14.
¶ 33 CONCLUSION
¶ 34 For the reasons stated, we affirm the judgment of the circuit court of Cook County denying
defendant leave of court to file his successive postconviction petition.
¶ 35 Having disposed of the substantive issues, our panel colleague, Justice Hyman, has called
to our attention several format and style issues in the parties’ briefs, which while not necessary
for the analysis of the issues involved, remain a constant concern to this court.
¶ 36 We point out a few writing missteps in the parties’ briefs involving Illinois Supreme Court
Rule 341 (eff. Jan. 1, 2016). Because these lapses steadily pop up, we draw attention to them.
Remember, full compliance with Rule 341 is not optional and has the added benefit of framing
more readable, navigable, and comprehensible briefs.
¶ 37 Illinois Supreme Court Rule 341 (eff. Jan. 1, 2016) sets out the requirements for filing a
brief on appeal. Rule 341 seeks to promote “clear and orderly arguments” so that the reviewing
court may better discern and decide the issues. (Internal quotation marks omitted.) Collier v.
Avis Rent A Car System, Inc., 248 Ill. App. 3d 1088, 1095 (1993). Failure to substantially
conform to appellate briefing rules can lead to dismissal. Hall v. Naper Gold Hospitality LLC,
2012 IL App (2d) 111151, ¶ 7.
¶ 38 Some of the provisions of Rule 341 are quite specific. For instance, Rule 341(a) requires
typeface of “12-point or larger throughout the document, including quoted material and any
footnotes.” Ill. S. Ct. R. 341(a) (eff. Jan. 1, 2016). On page 10 of defendants’s brief appears a
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footnote in a typeface that is smaller than the typeface in the body of the brief. This slight
deviation from the rules does not warrant striking the brief; we would advise lawyers to strictly
comply with the typeface rule. There is a practical reason to do so—a good number of appellate
judges have arrived at an age when they cannot read type smaller than 12-point without the
need for squinting or reaching for their reading glasses.
¶ 39 Other provisions of Rule 341 are more advisory. For example, Rule 341(a) wisely
discourages, but does not prohibit, footnotes. It also permits quotations of two or more lines to
be single-spaced but advises that “lengthy quotations are not favored and should be included
only where they will aid the court’s comprehension of the argument.” Ill. S. Ct. R. 341(a) (eff.
Jan. 1, 2016).
¶ 40 Here, the “Statement of Facts” section of the State’s brief includes a summary of the trial
court proceedings taken verbatim from an unpublished Rule 23 order ruling on the direct
appeal. The quoted material consists of 10 continuous single-spaced pages. Although this does
not technically violate Rule 341, it regurgitates an available order, which could have been
attached to an appendix for easy reference and the relevant paragraphs simply cited. Ten pages
of thick type make for grim reading. Also, the multiple single-spaced pages squeezed into 40
pages when if double-spaced, would have exceeded the 50-page limit in Illinois Supreme Court
Rule 341(b)(1) (eff. Jan. 1, 2016)). Although we are not suggesting this was intentional, courts
take umbrage at efforts to skirt rules.
¶ 41 Later in the “Argument” section of the brief, the State again inserts single-spaced block
quotes from our earlier unpublished order, with several lines in boldface type for emphasis.
While Rule 341 does not prohibit the use of bold type, we recommend that it be reserved for
headings and nothing else. Even boldface headings of over two lines lose their impact and are
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hard to read, not to mention annoying. Instead, stick with italics. And, by the way, never ever
underline bold type; it is akin to shouting and considered rude.
¶ 42 Every appellate lawyer should want to present the legal issues and arguments accurately,
concisely, and persuasively. A way to self-sabotage that goal is to disregard both the letter and
the purpose of Rule 341.
¶ 43 Affirmed.
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People v. Miranda, 2023 IL App (1st) 170218-BDecision Under Review: Appeal from the Circuit Court of Cook County, No. 07-CR-11290;
the Hon. Stanley Sacks, Judge, presiding.
Attorneys Richard Dvorak and Christopher A. Tinsley, of Dvorak Law
for Offices, LLC, of Clarendon Hills, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Douglas P. Harvath, and Miles J. Keleher, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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