People v. Miranda

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Appellate Court Date: 2018.07.18
12:11:45 -05'00'

People v. Miranda, 2018 IL App (1st) 170218

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JONATHAN MIRANDA, Defendant-Appellant.

District & No. First District, Second Division
Docket No. 1-17-0218

Filed March 13, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-11290; the
Review Hon. Stanley Sacks, Judge, presiding.

Judgment Affirmed.

Counsel on Dvorak Law Offices, LLC, of Willowbrook (Richard Dvorak and
Appeal Christopher A. Tinsley, of counsel), for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Douglas P. Harvath, and Miles J. Keleher, Assistant State’s Attorneys,
of counsel), for the People.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Presiding Justice Neville concurred in the judgment and opinion.
Justice Hyman specially concurred, with 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. For the reasons that
follow, we affirm.

¶2 BACKGROUND
¶3 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.
¶4 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) (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.
¶5 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.
¶6 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.

1
Jason and Wellington Jaramillo are not parties to this appeal.

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¶7 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
consecutive terms of 21 and 6 years’ imprisonment, respectively.
¶8 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. People v. 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 Jaramillo 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 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.
¶9 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.”

2
Defendant was represented by attorney Joseph DiNatale during the plea proceedings and attorneys
Mark Kusatzky and Gus Santana thereafter and during trial.

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¶ 10 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
and shooting of Froylan 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.
¶ 11 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.
¶ 12 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)).
¶ 13 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
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.
¶ 14 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.”
¶ 15 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, Luis Madrid averred that on
April 24, 2007, he accompanied Arthuro Miranda, defendant’s younger brother, to his cousins’

3
Mr. Dvorak also represents defendant in this appeal.

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 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. Luis further averred that he
would have testified had defendant’s attorneys asked him.
¶ 16 Defendant’s sister, Kayla Rincon, averred that on April 24, 2007, defendant came home
after work and stayed home the entire night. Kayla watched television in the kitchen with her
mother, defendant, and defendant’s girlfriend, Stephanie Araujo, until 10 p.m. when she went
to bed. Kayla 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.
¶ 17 Defendant’s girlfriend, Stephanie 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
Luis Madrid were present. Stephanie further averred that she was available to testify at
defendant’s trial but was never asked to do so.
¶ 18 Defendant next contended that newly discovered evidence comprised of affidavits from his
cousins, Jason and Wellington Jaramillo, 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 Luis Diaz, who owed Froylan
Lopez money for drugs that had been seized by police.
¶ 19 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, the
circuit court found that the affidavits4 of Jason and Wellington Jaramillo 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.”

4
Defendant correctly points out that the circuit court also discussed the affidavits of Luis Madrid,
Stephanie Araujo, and Kayla 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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¶ 20 Regarding defendant’s claim that trial counsel was ineffective for failing to call his sister
Kayla 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 Luis Madrid and Stephanie 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 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
Jaramillo 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 Luis Madrid, Kayla
Rincon, Stephanie Araujo, and defendant’s cousins because their proposed testimony would
not have changed the outcome.

¶ 21 ANALYSIS
¶ 22 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)).
¶ 23 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.
¶ 24 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
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)).

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¶ 25 “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, 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).
¶ 26 Here, we observe that the affidavits of defendant’s cousins constitute newly discovered
evidence because no amount of due diligence could have compelled them to violate their fifth
amendment right against self-incrimination. Id. ¶ 55 (citing Edwards, 2012 IL 111711, ¶ 38).
However, the proposed testimony of the cousins, that they lied to Luis 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. We find that defendant’s actual
innocence claim fails because he cannot establish the most important element of such claim,
i.e., that the proposed testimony of his cousins is “ ‘so conclusive that it is more likely than not
that no reasonable juror would find him guilty beyond a reasonable doubt.’ ” Id. The cousins’
averments do not exonerate defendant because he was convicted of the underlying crimes
committed by his cousins under an accountability theory, which only requires that the
accountable person intend to promote or facilitate the commission of the underlying crime. Id.
¶¶ 46-47, 55-57. The evidence contained in the cousins’ affidavits merely affects the
sufficiency of the evidence and does not totally vindicate defendant. Id. ¶ 57 (construing
People v. Adams, 2013 IL App (1st) 111081, ¶ 36 (evidence of actual innocence must support
total vindication or exoneration)). Under these circumstances, we cannot find that defendant’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. Sanders, 2016 IL 118123, ¶ 47.
¶ 27 In so finding, we note that although defendant maintains that his cousins’ affidavits were
“conclusive enough to change the result on retrial,” he does so without further discussion until
his reply brief, arguing for the first time that the information contained in the affidavits rebut
the “single piece of evidence” used to establish defendant’s mens rea for accountability.
Generally, arguments raised for the first time in a reply brief are considered forfeited. People v.
Chatman, 2016 IL App (1st) 152395, ¶ 40; Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Under
these circumstances, we need not address defendant’s argument. People v. Strickland, 2015 IL
App (3d) 140204, ¶ 16. Even so, we observe that accountability, alone, is not a crime but a

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 mechanism for establishing culpability for an underlying crime. Williams, 2016 IL App (1st)
133459, ¶ 62 (Hyman, J., specially concurring). Mens rea, in the context of accountability,
simply requires that the accountable person intend to promote or facilitate the commission of
the underlying crime (id. ¶¶ 46-47 (majority opinion)); the mens rea for the underlying crime
is “wholly separate and apart from” the mens rea encompassed in the accountability statute (id.
¶ 64 (Hyman, J., specially concurring)). As we found on direct appeal in this case, there was
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. Miranda, 2012 IL App (1st) 103360-U, ¶¶ 51-53.
¶ 28 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 Luis Madrid,
Kayla Rincon, and Stephanie 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.
¶ 29 “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).
¶ 30 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 Luis Madrid, Kayla Rincon, and Stephanie Araujo, based on
their supporting affidavits. The witnesses’ proposed testimony involves the day before the
shooting of Lopez 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.

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¶ 31 CONCLUSION
¶ 32 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.

¶ 33 Affirmed.

¶ 34 JUSTICE HYMAN, specially concurring:
¶ 35 I agree with the majority’s decision to affirm. I write separately to point out a few writing
missteps in the parties’ briefs involving Illinois Supreme Court Rule 341. Because these lapses
steadily pop up, I wanted to 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.
¶ 36 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.
¶ 37 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 Miranda’s brief appears a
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, but I 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.
¶ 38 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).
¶ 39 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 Rule 341(b)(1) (Ill. S.
Ct. R. 341(b)(1) (eff. Jan. 1, 2016)). Although I am not suggesting this was intentional, courts
take umbrage at efforts to skirt rules.
¶ 40 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, I 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.
¶ 41 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.

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