People v. Miranda

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 07-CR-11290; the Hon. Stanley Sacks, Judge, presiding. Judgment Affirmed. Counsel on Appeal Dvorak Law Offices, LLC, of Willowbrook (Richard Dvorak and 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.

¶ 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.

¶ 3 In 2007, defendant and his cousins, Jason and Wellington Jaramillo, 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. ¶ 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.

¶ 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)). 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.

¶ 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 10 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.