People v. Hatch , 2022 IL App (2d) 210590-U ( 2022 )

2022 IL App (2d) 210590-UNo. 2-21-0590
Order filed October 31, 2022
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)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-CF-599
)
ARAMIS HATCH, ) Honorable
) John Barsanti,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Justices Hutchinson and Hudson concurred in the judgment.
ORDER
¶1 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.
¶2 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)
(735 ILCS 5/2-702 (West 2020)). We affirm.
¶3 I. BACKGROUND
¶4 The factual background is more fully set forth in this court’s prior opinion in People v.
2022 IL App (2d) 210590-UHatch, 2020 IL App (2d) 170932-U (unpublished order under Illinois Supreme Court Rule 23)
(Hatch I), which was defendant’s direct appeal from his conviction. We include only those facts
that are pertinent to the resolution of the instant appeal.
¶5 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 (720
ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)) or a valid Firearm Owner’s Identification (FOID)
card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014)). The charges stemmed from an incident
that occurred on April 11, 2015. On that date, police were dispatched to an address in Elgin in
response to a 911 call regarding a “potential stolen vehicle.” Once there, they discovered a vehicle
with two passengers inside parked on the road, in front of a stop sign. Defendant, who was seated
in the front passenger seat, was observed with a pistol protruding from the pocket of his jacket.
Because defendant was seated, the pockets of his jacket were near his lap, and so “the pistol was
sitting right on his lap.” Police secured defendant’s firearm, removed seven rounds of ammunition
from it, and arrested him. Defendant did not resist the officers and he fully complied with their
commands. At the time of the arrest, the officers did not know whether defendant had a valid
FOID card or if he possessed the firearm legally. Neither a FOID card nor a license under the
Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2014)) was recovered from defendant.
¶6 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
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2022 IL App (2d) 210590-UIdentification Card Act (FOID Card Act) applicable to “[n]onresidents who are currently licensed
or registered to possess a firearm in their resident state.” 430 ILCS 65/2(b)(10) (West 2014). After
a bench trial, defendant was found guilty of both offenses and sentenced to 180 days in jail and 24
months’ probation.
¶7 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.
¶8 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
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2022 IL App (2d) 210590-Uthat he was a resident of the state of Georgia at the time of his arrest, where “he [was] allowed to
possess a firearm without a license under Georgia law such that Georgia permitted and licensed
him to possess a firearm.” According to defendant, he therefore fell into the exception in the FOID
Card Act applicable to “[n]onresidents who are currently licensed or registered to possess a firearm
in their resident state.” See 430 ILCS 65/2(b)(10) (West 2020). Concerning the Firearm
Concealed Carry Act, defendant maintained that he fell into an exception that is applicable to a
nonresident who is “transporting a concealed firearm within his or her vehicle” and, among other
requirements, “is eligible to carry a firearm in public under the laws of his or her state or territory
of residence, as evidenced by the possession of a concealed carry license or permit issued by his
or her state of residence, if applicable.” See 430 ILCS 66/40(e) (West 2020). Accordingly,
defendant contended he was not required to obtain either a FOID card or a concealed carry license
before possessing a firearm in Illinois and was innocent of the charged offenses. Defendant did
not cite any Georgia authority in support of his assertion that he was allowed to possess a firearm
without a license under Georgia law.
¶9 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
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2022 IL App (2d) 210590-Uemphasized that the appellate court rejected the identical argument in Wiggins, where it held that
the exception to the FOID Card Act for nonresidents currently licensed or registered to possess a
firearm in their resident state applied only “to nonresidents who have complied with a required
governmental process and received an official license from their home state to possess a firearm.”
Wiggins, 2016 IL App (1st) 153163, ¶ 61.
¶ 10 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.
¶ 11 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
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2022 IL App (2d) 210590-Uwhether defendant possessed the firearm legally, he was not innocent of the charges because he,
“in fact, *** did not hold such licenses or registrations sufficient to exempt him from the ***
[AUUW] charge[s].”
¶ 12 Defendant timely appeals.
¶ 13 II. ANALYSIS
¶ 14 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.”
¶ 15 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. 735 ILCS 5/2-702(a) (West 2020). Its aim is to “benefit
men and women that have been falsely incarcerated through no fault of their own.” (Internal
quotation marks omitted.) People v. Warner, 2022 IL App (1st) 210260, ¶ 32. The proceedings
are civil in nature, and the burden is on the petitioner to prove the requirements to entitle him or
her to such relief by a preponderance of the evidence. People v. Rodriguez, 2021 IL App (1st)
200173, ¶ 44.
¶ 16 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,
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2022 IL App (2d) 210590-Ufile 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).
¶ 17 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).
¶ 18 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
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2022 IL App (2d) 210590-Ufinding that the petitioner was innocent of all offenses for which he or she was incarcerated.” 735
ILCS 5/2-702(h) (2020). Where a petitioner obtains a certificate of innocence, it is “all but certain
that the petitioner can obtain a money judgment against the State for wrongful incarceration.”
People v. Moore, 2020 IL App (1st) 190435, ¶37. See also Betts v. United States, 10 F.3d 1278,
1283 (7th Cir. 1993) (“[a] certificate of innocence serves no purpose other than to permit its bearer
to sue the government for damages”). The decision of whether to grant a petitioner a certificate of
innocence is within the sound discretion of the circuit court. Rodriguez, 2021 IL App (1st) 200173,
¶ 44. A trial court abuses its discretion only when its ruling is arbitrary, fanciful, or unreasonable,
or where no reasonable person would take the view of the trial court. Id. ¶ 47.
¶ 19 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.
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2022 IL App (2d) 210590-U¶ 20 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.
¶ 21 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
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2022 IL App (2d) 210590-Uand the reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill.
S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). The nature of the exact arguments that defendant raises in
his appellate brief are, at best, difficult to discern. He purports to identify five contentions, but
none of them articulate a lucid argument upon which to reverse the circuit court’s judgment. First,
none of the headings that purport to state defendant’s argumentative points and subpoints identify
defendant’s actual argument. Rather, the headings merely identify the general topic that follows.
See Ill. S. Ct. R. 341 (h)(1) (eff. Oct. 1, 2020) (the “Points and Authorities” section of an appellate
brief “shall consist of the headings of the points and subpoints as in the Argument”). The first
heading in defendant’s brief is titled “Four Prongs for a Certificate of Innocence.” Another is
simply titled “735 ILCS 5/2-702(g),” which is the portion of the Code that governs certificates of
innocence. As far as we can tell, neither of these enumerated portions of defendant’s argument
make any argument at all. The former appears to do little more than identify an issue on appeal,
and the latter declares only that defendant’s “actual innocence claim holds,” citing, without
analysis, People v. Washington, 171 Ill. 2d 475, 489 (1996), in which our supreme court held that
a claim of actual innocence is cognizable under the Post-Conviction Hearing Act (725 ILCS 5/122-
1 et seq. (West 1992)).
¶ 22 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
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2022 IL App (2d) 210590-Uresearch. In re Marriage of James and Wynkoop, 2018 IL App (2d) 170627, ¶ 37. Moreover,
several portions of defendant’s argument section appear to have been “borrowed” from published
case law involving other defendants who sought certificates of innocence. For example,
defendant’s second identified argument (which he identifies in a heading only as “The Circuit
Court Decision”) bears a striking resemblance to People v. Hood, 2021 IL App (1st) 162964, ¶¶
24-26. Another portion of his argument repurposes, nearly verbatim, portions of People v.
McClinton, 2018 IL App (3d) 160648, ¶¶ 20-21. Although defendant’s counsel did provide
attribution to those cases in his appellate brief, he did so without utilizing block quotation or any
other means to clearly delineate the copied material. We remind counsel of his duty to comply
with Rule 8.4(c) of the Illinois Rules of Professional Conduct of 2010, which prohibits attorneys
from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” 134 Ill. 2d
R. 8.4(c).
¶ 23 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
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2022 IL App (2d) 210590-Uaddress defendant’s arguments to the extent we can discern them, but we will find forfeited those
arguments that are not properly developed or unsupported with adequate authority.
¶ 24 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.
¶ 25 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.
¶ 26 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
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2022 IL App (2d) 210590-Udistraction.” Id. ¶ 27. There, just as here, the record demonstrates that the court utilized the correct
standard in evaluating whether defendant satisfied the statutory prerequisites necessary to obtain
a certificate of innocence, including the requirement in section 2-702(g)(3) that a petitioner
demonstrate he or she “is innocent of the offenses charged in the indictment.” Section 2-702
requires that, in order to obtain a certificate of innocence, the defendant must prove by a
preponderance of the evidence that he or she is “actually innocent,” rather than a situation in which
the State presented insufficient evidence to convict the defendant, as well as that the defendant did
not act in a way that brought about the conviction. People v. Dumas, 2013 IL App (2d) 120561,
¶¶ 18-19. The court’s written decision correctly recited the applicable burden that was on
defendant, namely that he prove, by a preponderance of the evidence, that he is innocent of the
offenses. The court also found that, “[w]hile the evidence of the incident would have been
suppressed and the defendant would be ‘not guilty,’ he was not ‘innocent’ of the charges for which
he was convicted. The court’s use of the phrase “not innocent” does not suggest that it
misunderstood defendant’s burden of persuasion or that it held him to an evidentiary standard that
was more stringent than the requirements of section 2-702.
¶ 27 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
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2022 IL App (2d) 210590-Uauthority, and argues that “evidence submitted and the Appellate Court’s ruling on reversing
outright the Petitioner’s conviction, that under the preponderance of the evidence standard, the
Petitioner is entitled to the relief requested.”
¶ 28 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)).
¶ 29 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
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2022 IL App (2d) 210590-UCard Act or the Firearm Concealed Carry Act. Id. ¶ 2. The reversal of his conviction was based
solely on his trial counsel’s ineffectiveness—and not on any determination regarding defendant’s
guilt or innocence. Id. ¶ 27.
¶ 30 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).
¶ 31 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) 160548, ¶¶ 20-21.
¶ 32 In McClinton, the defendant was convicted of AUUW under the statutory subsection that
Aguilar later declared unconstitutional, namely 720 ILCS 5/24-1.6(a)(1), (a)(3)(A). McClinton,
2018 IL App 3d 160648, ¶ 1. Again, that section of the AUUW statute had effectively prohibited
the carrying outside of the home of a firearm which is uncased, loaded, and immediately accessible.
See People v. McFadden, 2016 IL 117424, ¶ 12. Following Aguilar, the appellate court in
McClinton reversed the defendant’s conviction on the grounds that her conviction was premised
on a facially unconstitutional statute. McClinton, 2018 IL App 3d 160648, ¶ 6. The defendant
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2022 IL App (2d) 210590-Uthereafter sought a certificate of innocence, which the circuit court denied on the basis that the
defendant had failed to establish her innocence of the offense. The appellate court vacated the
circuit court’s order and remanded for the entry of a certificate of innocence. Id. ¶ 22. The court
reasoned that the statute the defendant was convicted of was void from the beginning such that her
conduct would not have voluntarily brought about a conviction under a statute that was
“constitutionally infirm from the moment of its enactment.” Id. ¶ 20. Further, her acts did not
constitute a felony or misdemeanor against the state because the charge was based on a statute that
was unconstitutional. Id. ¶ 21.
¶ 33 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 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West
2014) or a valid FOID Card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2014).
¶ 34 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
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2022 IL App (2d) 210590-UCard requirement is a reasonable restriction on the second amendment); Berron v. Illinois
Concealed Carry Licensing Review Board, 825 F.3d 843, 847 (7th Cir. 2016) (upholding
concealed-carry licensure requirement as permissible under the second amendment). Because
defendant was not convicted of violating a statute that was later held unconstitutional and, in light
of the absence of argument that the portions of the AUUW statute that he was convicted under are
facially unconstitutional or unconstitutional as applied to him, his second claim of error fails.
¶ 35 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” (430 ILCS 65/2(b)(10) (West 2020)), as well as an
exception to the Firearm Concealed Carry Act which allows nonresidents to transport concealed
firearms within their vehicle (430 ILCS 66/40(e) (West 2020)).
¶ 36 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).
¶ 37 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
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2022 IL App (2d) 210590-Uto evaluate whether defendant fit the exception to the FOID Card Act that is applicable to
“[n]onresidents who are currently licensed or registered to possess a firearm in their resident state.”
See 430 ILCS 65/2(b)(10) (West 2020)). Only after the State pointed out the wholesale lack of
authority for his assertion did defendant cite any Georgian statute, namely “O.C.G.A. § 16-11-
126(a).” However, nowhere in defendant’s reply brief does he provide the actual text of the statute
relied on or engage in any analysis of it. Instead, he attached to his reply brief a “legal opinion”
letter apparently drafted by an attorney licensed to practice law in Georgia. In the letter, the
attorney summarily concludes that “it is legal for an unlicensed person to possess and carry a
handgun on his or her property or inside his or her home or automobile,” as well as states that he
“discussed this issue with our District Attorney who totally concurred with [his] opinion.”
¶ 38 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.
¶ 39 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
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2022 IL App (2d) 210590-Umake here regarding his failure to possess a FOID Card. There, the court held that the exception
in the FOID Card Act that is applicable to nonresidents “currently licensed *** to possess a firearm
in their resident state” applies only to nonresidents “who have complied with a required
governmental process and received an official license from their home state to possess a firearm.”
Wiggins, 2016 IL App (1st) 153163, ¶ 43. Curiously, defendant did not mention Wiggins in his
opening brief, notwithstanding the fact that the circuit court relied on it in granting the State’s
motion in limine that sought to bar evidence that he was a Georgia resident and any argument that
he was therefore exempt from the FOID Card Act, as well as relied on it in denying defendant’s
petition for a certificate of innocence. Defendant does acknowledge Wiggins in his reply brief, but
he offers no argument that it was wrongly decided or that this court should decline to follow it.
He instead points out that Wiggins, in reaching its holding, expressly disagreed with the federal
district court in Mishaga v. Schmitz, 136 F. Supp. 3d 981 (C.D. Ill. 2015), which concluded that
the exception in section 2(b)(10) of the FOID Card Act is applicable to nonresidents who are
authorized by their resident state to possess a firearm without a formal license or registration
requirement. Defendant makes no argument that we should follow Mishaga, but instead asserts
that if we agreed with its holding, we “would conclude” that he is “licensed to possess a firearm
by the State of Georgia.” In the absence of any analysis or argument that we should follow
Mishaga, which is non-binding foreign authority, we decline defendant’s invitation to ponder what
we “would conclude” had he presented a cohesive legal argument supportive of his position.
¶ 40 III. CONCLUSION
¶ 41 For the above reasons, we affirm the judgment of the circuit court of Kane County.
¶ 42 Affirmed.
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