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2018 IL App (1st) 170218 

No. 1-17-0218 

SECOND DIVISION 

March 13, 2018 

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. 

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 
 

 

 

 

 

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¶ 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 

1

Jason and Wellington Jaramillo are not parties to this appeal. 

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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. 

¶ 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 

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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 21⁄2 to 3 years in jail.” Defendant also alleged 

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that trial counsel2 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.” 

¶ 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 

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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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 

3

Mr. Dvorak also represents defendant in this appeal.
 

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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’ 

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 

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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.” 

¶ 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 

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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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 

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(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)). 

¶ 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, 

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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 

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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 

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 

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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 

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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. 

¶ 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 brief 

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. 

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¶ 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 

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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 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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