THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARAMIS HATCH, Defendant-Appellant.
No. 2-21-0590
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
October 31, 2022
2022 IL App (2d) 210590-U
JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Hudson concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
No. 15-CF-599
Honorable John Barsanti, Judge, Presiding.
ORDER
Held: The circuit court did not abuse its discretion in denying defendant‘s petition for a certificate of innocence where he failed to prove by a preponderance of the evidence that he was innocent of the charged offenses.
¶ 1 Defendant, Aramis Hatch, appeals the order of the circuit court of Kane County denying his petition for a certificate of innocence under section 2-702 of the Code of Civil Procedure (Code) (
I. BACKGROUND
¶ 2 The factual background is more fully set forth in this court‘s prior opinion in People v. Hatch, 2020 IL App (2d) 170932-U (unpublished order under Illinois Supreme Court Rule 23)
¶ 3 On August 18, 2015, defendant was charged by indictment with two counts of aggravated unlawful use of a weapon (AUUW) for possessing a concealed firearm while not on his land or in his home (or that of another person as an invitee) without a valid concealed carry license (
¶ 4 Based on People v. Wiggins, 2016 IL App (1st) 153163, the circuit court granted the State‘s motion in limine and prohibited defendant from offering any evidence or argument that he was a resident of the state of Georgia or that he was permitted to possess a firearm in that state without a license. The State expressly anticipated that defendant would argue that he was permitted to carry a firearm in Georgia without a license such that he fit the exemption in the Firearm Owner‘s
¶ 5 Defendant filed a direct appeal raising three arguments: (1) his trial counsel was ineffective for failing to file a motion to quash his arrest and suppress evidence because the officers lacked probable cause to believe his possession of the firearm was illegal at the time of arrest; (2) he was either exempt from the FOID Card Act and the Firearm Concealed Carry Act, or the statutes were unconstitutional as applied to him; and, (3) in the alternative, one of his convictions should be vacated under the one-act, one-crime doctrine. We agreed with defendant‘s first argument and reversed his convictions outright on June 12, 2020. Hatch I, 2020 IL App (2d) 170932-U, ¶ 2. In so holding, we reasoned that a motion to quash arrest and suppress evidence would have succeeded had defendant‘s counsel filed one because the arresting officers testified that they had no knowledge regarding whether defendant legally possessed the firearm at the time of the arrest, and the applicable case law was clear that possession of a firearm outside of the home is not, in and of itself, a crime. Id. ¶¶ 27-40. See also People v. Aguilar, 2013 IL 112116, ¶¶ 20-22 (striking down as unconstitutional a section of the AUUW statute that categorically banned the possession of an operable firearm outside the home). As the result of this determination, it was unnecessary to reach the merits of defendant‘s remaining arguments.
¶ 6 On May 14, 2021, defendant filed a petition for a certificate of innocence under section 2-702 of the Code. He highlighted that he was convicted of two counts of AUUW, that he fully served his sentence, that we reversed his conviction outright, and that the circuit court subsequently entered an order dismissing his charges. As the factual basis for the petition, defendant contended
¶ 7 On May 20, 2021, the State moved to deny defendant‘s petition, arguing that he failed to establish his innocence of the offenses charged in the indictment. It stressed that the reversal of his convictions was based, not on the proposition that defendant lawfully possessed the firearm on the date of the offense, but rather, on defendant‘s receipt of ineffective assistance of counsel. In other words, it asserted that the reversal of defendant‘s convictions did not mean that he lawfully possessed the firearm at the time of his arrest. The State also argued that defendant provided insufficient detail to establish his innocence of the offenses, including any evidence that he was a resident of Georgia or that he was allowed to possess a firearm under Georgia law. Arguendo, even if defendant was a resident of Georgia and was allowed to possess a firearm there, the State
¶ 8 On May 24, 2021, defendant filed a response to the State‘s motion and asserted that, under the “innocence” prong in section 2-702(g)(3), he needed only to establish that he was found “not guilty,” and that the State‘s argument impermissibly argued in favor of “a higher standard of ‘innocence of the charges.‘” He contended that, “[a]t the very least, defendant [was] *** ‘not guilty’ which meets the criteria for a Certificate of Innocence.” Regarding the State‘s reliance on Wiggins, defendant contended that it was a “red herring” whose decision was flawed. The State filed a reply on June 16, 2021, disputing defendant‘s claim that he needed only to demonstrate that he was “not guilty” and maintained that defendant failed to establish that he possessed the firearm legally.
¶ 9 After a hearing on September 17, 2021, the circuit court entered a written order denying the petition, reasoning that defendant failed to satisfy the third prong of section 2-702(g), namely, that he was innocent of the charged offenses. It observed that, although section 2(b)(10) of the FOID Card Act exempts “nonresidents who are currently licensed or registered to possess a firearm in their resident state,” Wiggins held that the exception is applicable only to nonresidents who have “complied with a required governmental process and received an official license from their home state to possess a firearm,” as opposed to situations in which the resident state authorizes gun possession without any formal approval or licensure requirements. See Wiggins, 2016 IL App (1st) 153163, ¶ 43. The court further noted that, notwithstanding the officers’ failure to investigate
¶ 10 Defendant timely appeals.
II. ANALYSIS
¶ 11 Defendant argues on appeal that the circuit court erred in denying his petition for a certificate of innocence because he satisfied the four statutory prongs in section 2-702(g) necessary to obtain such a certificate—including the third prong, which requires that a petitioner prove that he is innocent of the offenses charged in the indictment. Defendant maintains that he is entitled to a certificate of innocence based on “evidence submitted and the Appellate Court‘s ruling on reversing outright [his] conviction.”
¶ 12 Section 2-702 of the Code provides a means for innocent persons who have been wrongfully convicted and imprisoned to obtain a finding of innocence so that they may seek relief through a petition in the Court of Claims.
¶ 13 Section 2-702(b) of the Code establishes who may petition for a certificate of innocence and what he or she may request. It provides:
“[a]ny person convicted and subsequently imprisoned for one or more felonies by the State of Illinois which he or she did not commit may, under the conditions hereinafter provided,
file a petition for certificate of innocence in the circuit court of the county in which the person was convicted. The petition shall request a certificate of innocence finding that the petitioner was innocent of all offenses for which he or she was incarcerated.” 735 ILCS 5/2-702(b) (West 2020) .
¶ 14 To obtain a certificate of innocence under section 2-702 of the Code, the petitioner must prove four elements by a preponderance of the evidence:
“(1) the petitioner was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the indictment or information dismissed; or (B) the statute, or application thereof, on which the indictment or information was based violated the Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction.”
735 ILCS 5/2-702(g) (West 2020) .
¶ 15 When evaluating whether a petitioner has shown by a preponderance of the evidence that he or she was innocent of the offense, the circuit court must consider the materials attached to the petition in relation to the trial evidence. People v. Fields, 2011 IL App (1st) 100169, ¶ 19. “If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate of innocence
¶ 16 At the outset, we are compelled to address defendant‘s failure to comply with Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020), which governs the form and contents of an appellant‘s brief. Defendant‘s brief represents his second attempt to file a brief in conformity with the rules. Following a motion filed by the State, we struck defendant‘s initial brief and ordered him to file a brief that substantially complied with all applicable rules or risk dismissal. The requirements outlined in Rule 341(h) “are not mere suggestions,” and the “failure to comply with the rules regarding appellate briefs is not an inconsequential matter.” Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 7. The procedural rules governing the content and format of appellate briefs are mandatory. Ammar v. Schiller, DuCanto & Fleck, LLP, 2017 IL App (1st) 162931, ¶ 11. “The purpose of the rules is to require the parties to present clear and orderly arguments, supported by citations of authority and the record, so that this court can properly ascertain and dispose of the issues involved.” Gruby v. Department of Public Health, 2015 IL App (2d) 140790, ¶ 20.
¶ 17 Defendant‘s subsequent brief fails to conform with Rule 341(h)(6), which requires that an appellant‘s brief include a statement of facts “which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). Defendant‘s statement of facts contains two critical assertions of “fact” that are both unsupported by the record and contested by the State. Specifically, defendant states: “[t]he Petitioner, who was a Georgia resident at the time of the arrest, was convicted of two counts of aggravated unlawful use of a weapon.” (Emphasis added.) Defendant‘s only citation to the record for this proposition is the circuit court‘s order finding him guilty. Although that order does establish that he was convicted of two counts of AUUW, it makes no reference to his state of residency. Second, defendant asserts in his statement of facts that he “was familiar with Georgia law under which he was eligible to carry a firearm in public without a physical license.” Defendant supports this assertion by reference to the “Background” section of this court‘s Rule 23 order pertaining to his direct appeal, wherein we recounted defendant‘s own proffered testimony and arguments that he would have presented at trial had the circuit court denied the state‘s motion in limine. See Hatch I, 2020 IL App (2d) 170932-U, ¶ 13. This assertion is argumentative and thus improper for a statement of facts because it presents defendant‘s proffered argument and his advocated-for legal conclusion as a historical fact of this appeal. Our Rule 23 order, which defendant apparently points to as the “appropriate reference to the pages of the record on appeal,” provides no support for his declaration that he was eligible to carry a firearm in public under Georgia law.
¶ 18 Defendant‘s second brief also largely fails to conform to Rule 341(h)(7), which requires that an appellant‘s brief contain “[a]rgument, which shall contain the contentions of the appellant
¶ 19 The substance of the remaining portions of defendant‘s argument section fare no better. It is replete with unstructured, confusing, and ill-defined “arguments” that lack cohesion and provide little to no discussion of the applicable case law to the facts of this case. Defendant has largely failed to articulate a legal argument that would allow for meaningful review. A reviewing court is entitled to have the issues raised in an appellant‘s brief clearly defined and supported by pertinent authority and cohesive arguments. U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009). The appellate court is not a depository into which the appellant may dump the burden of argument and
¶ 20 The State requests that we dismiss the appeal based upon the unsupported and argumentative assertions in defendant‘s statement of facts, as we have outlined above. It does not argue for dismissal based upon the nonconformity of defendant‘s argument section with Rule 341(h)(7). Striking a party‘s appellate brief, whether in whole or in part, is a harsh sanction that we will employ only when the violations are so great that they hinder our review. Burrell v. Village of Sauk Village, 2017 IL App (1st) 163392, ¶ 14. In light of defendant‘s failure to comply with Rule 341(h), it would be well within our discretion to strike the brief and dismiss the appeal, especially because defendant was provided a second opportunity to comply with all applicable rules. We decline to do so, however, because we have the benefit of a cogent brief from the State, and it is possible to discern at least some of defendant‘s arguments. See Twardoski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). Accordingly, we will endeavor to
¶ 21 As best we can tell, defendant argues on appeal that: (1) the circuit court applied the wrong standard in evaluating whether defendant was innocent of the offenses charged in the indictment; (2) the offenses he was convicted of were held to be unconstitutional and, as a result, his actions on the date of the offense were not criminal; and (3) he is innocent of his AUUW charges because, as a resident of Georgia, he fell within exceptions to the FOID Card Act and the Firearm Concealed Carry Act, because Georgia has no firearm licensing provision, such that his possession of a firearm in Illinois on the date of the offense was lawful. All three arguments fail.
¶ 22 Concerning his first claim of error, defendant seizes upon the circuit court‘s finding that “he was not ‘innocent’ of the charges for which he was convicted,” and argues that the court held him to a standard of innocence that is “dramatically higher” than is required under section 2-702(g) of the Code. He likens the court‘s use of the word “innocent” as to being akin to “actual innocence,” as that term is used in the context of postconviction proceedings, which requires that a defendant present “new, material, noncumulative evidence that is so conclusive it would probably change the result on retrial.” See People v. Coleman, 2013 IL 113307, ¶ 96. Defendant stresses that, conversely, the threshold to establish innocence under section 2-702(g)(3) is a lower burden because a petitioner seeking a certificate of innocence need only establish their innocence by a preponderance of the evidence.
¶ 23 We reject defendant‘s argument. Foremost, as noted, this argument heavily borrows from the First District‘s recent opinion in Hood, 2021 IL App (1st) 162964, ¶¶ 25-26. There, the appellate court rejected the identical argument, stating that it found “the debate over whether the section 2-702 petitioner must prove ‘actual innocence’ or ‘simple innocence’ to be a semantic
¶ 24 Indeed, it is defendant who misapprehends his burden of proof because he suggests that our outright reversal of his conviction establishes his innocence of the charged offenses. In the proceedings below, defendant maintained that “section 2-702(g)(3) requires only that a petitioner establish by a preponderance of the evidence that he shows [a] finding of being ‘not guilty’ of the crime.” He also asserted that, “[b]ased on the Appellate Court ruling ***[,] defendant is likely to succeed at trial in proving that he was innocent of the offenses charged in the indictment,” and that, “[a]t the very least, the Defendant would be found ‘not guilty,’ which meets the criteria for a Certificate of Innocence.” He reasserts this standard in his appellate brief, without citation to
¶ 25 Defendant is wrong. It is well established that in order to be entitled to a certificate of innocence, among the other requirements in section 2-702(g), the defendant “must prove by a preponderance of the evidence that he is ‘actually innocent,’ as opposed to circumstances in which the State presented insufficient evidence to convict.” Dumas, 2013 IL App (2d) 120561, ¶ 18. “[S]ection 2-702 requires a defendant to show by a preponderance of the evidence that he is actually innocent and that he did not act in a way that brought about his conviction. A mere reversal for failure to prove guilt beyond a reasonable doubt will not suffice.” Id. ¶ 19; see also Fields, 2011 IL App (1st) 100169, ¶ 19 (“[T]he plain language of section 2-702 shows the legislature‘s intent to distinguish between a finding of not guilty on retrial and actual innocence of the charged offenses“); and Perez v. Illinois Concealed Carry Licensing Review Board, 2016 IL App (1st) 152087 (“We note that ‘[a]cquittal does not demonstrate a defendant‘s innocence‘” (quoting People ex rel. City of Chicago v. Le Mirage, Inc., 2013 IL App (1st) 093547-B, ¶ 134)).
¶ 26 Although the reversal of defendant‘s convictions was sufficient to establish the first and second prongs under sections 2-702(g)(1) and (2), this court‘s previous order does not establish defendant‘s innocence of the charged offenses. In our prior opinion, we agreed with defendant‘s “meritorious and dispositive” argument that his trial counsel was ineffective for failing to file a motion to suppress evidence and quash arrest, which would have been successful had counsel filed it. Hatch I, 2020 IL App (2d) 170932-U, ¶ 39. That determination precluded a retrial where the firearm, along with defendant‘s statements to the police, would have been suppressed. Id. ¶ 40. Based on our holding, there was no need to evaluate whether defendant was exempt from the FOID
¶ 27 In seeking a certificate of innocence, the burden was on defendant to establish by a preponderance of the evidence that he was innocent, and he could not rest on our prior order to make that showing. Reversal for failure to prove defendant guilty beyond a reasonable doubt is insufficient to obtain a certificate of innocence. Dumas, 2013 IL App (2d) 120561, ¶ 19; see also Hood, 2021 IL App (1st) 162964, ¶¶ 28-29 (stating that the burden is on the defendant to show that it was more likely true than not true that he was innocent, and commutation of sentence was insufficient to make such a showing, just as a finding of not guilty is insufficient).
¶ 28 Defendant next argues that, as the result of our supreme court‘s decision in Aguilar, the “AUUW statute of firearm [sic] outside the home is void ab initio.” Defendant contends that “the statute that he was convicted under was later held unconstitutional” in Aguilar and, correspondingly, his acts as charged in the indictment were not unlawful. We observe that several paragraphs of defendant‘s scant argument on this point appear to have been copied directly from McClinton, 2018 IL App (3d) 160648, ¶¶ 20-21.
¶ 29 In McClinton, the defendant was convicted of AUUW under the statutory subsection that Aguilar later declared unconstitutional, namely
¶ 30 Defendant maintains that he was convicted under the identical statutory subsection as the defendant in McClinton. He is wrong. Defendant‘s AUUW convictions involved different sections of the AUUW statue than at issue in McClinton, where the defendant was convicted of the statutory subsection held unconstitutional in Aguilar, namely section 24-1.6(a)(1), (a)(3)(A). Conversely, in the instant matter, defendant was convicted of two counts of AUUW for possessing a concealed and loaded firearm while not on his land or in his home (or that of another person as an invitee) without a valid concealed carry license (
¶ 31 As we noted in Hatch I, although Aguilar invalidated the portion of the AUUW that categorically banned the possession of an operable firearm outside the home, our supreme court has emphasized that the right to possess a firearm for self-defense outside the home is not unlimited but is subject to meaningful regulation. Hatch I, 2020 IL App (2d) 170932-U, ¶ 26 (citing Aguilar, 2013 IL 112116, ¶ 21). The FOID Card Act and the Concealed Carry Act are examples of such meaningful regulation, and Illinois courts have rejected constitutional challenges to these statutory subsections. See People v. Taylor, 2013 IL App (1st) 110166, ¶¶ 28-32 (holding that the FOID
¶ 32 Finally, we turn to defendant‘s third argument, namely that he was statutorily exempt from the AUUW charges because, as a resident of the state of Georgia, he fell within an exception to the FOID Card Act applicable to “[n]onresidents who are currently licensed or registered to possess a firearm in their resident state” (
¶ 33 Defendant has forfeited review of this issue due to the decrepit state of his argument in this portion of his brief. Again, Rule 341(h)(7) requires that an appellant‘s brief contain “the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” The failure to articulate an argument will result in forfeiture of that argument on appeal. People v. Oglesby, 2016 IL App (1st) 141477, ¶ 205. An issue that is merely listed or included in an allegation is not ‘argued.’ Id. at 242. “A reviewing court is entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument presented.” In re Marriage of Auriemma, 271 Ill. App. 3d 68, 72 (1995).
¶ 34 In his opening brief, defendant provides no citation to any authority from Georgia to support his assertion that he, at the time of the offense, was allowed under Georgia law to possess a firearm without a license. Without citation to any Georgia authority, we are unable to even begin
¶ 35 The State has filed a motion to strike the letter and any argument in defendant‘s reply brief that is based on it. We grant the State‘s motion because the letter was not part of the common law record and does not constitute a proper legal source. See People v. Garcia, 2017 IL App (1st) 133395, ¶ 35 (attachments to briefs cannot be used to supplement the record, and this court cannot consider evidence that is not part of the record); People v. Davis, 65 Ill. 2d 157, 165 (1976) (documents containing readily verifiable facts from sources of accuracy may be judicially noticed). Neither the confidence of the attorney who drafted the letter nor that of the official who purportedly “totally concurred” with that attorney may displace the necessary reasoned analysis and citation to pertinent authority required by Rule 341(h)(7), and defendant‘s reliance on it is fatal to his argument.
¶ 36 Even if defendant had established that he (1) is a resident of Georgia; and (2) was allowed to possess a firearm in Georgia under Georgia law without a license on the date of the offense, the appellate court in Wiggins rejected the identical argument that defendant apparently attempts to
III. CONCLUSION
¶ 37 For the above reasons, we affirm the judgment of the circuit court of Kane County.
¶ 38 Affirmed.