text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jonathan MIRANDA, Defendant-Appellant.
    No. 1-17-0218
    Appellate Court of Illinois, First District, SECOND DIVISION.
    March 13, 2018
    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.
   JUSTICE PUCINSKI delivered the judgment of the court, 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.

¶ 2 BACKGROUND

¶ 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.

¶ 7 Defendant proceeded to a jury trial in 2010. The jury found defendant guilty of home invasion and aggravated battery with a firearm. The trial court then sentenced defendant to consecutive terms of 21 and 6 years' imprisonment, respectively.

¶ 8 On direct appeal, we affirmed the judgment entered on defendant's convictions over his challenge to the sufficiency of the evidence and to the propriety of the State's rebuttal argument. People v. Miranda , 2012 IL App (1st) 103360-U. As to the sufficiency of the evidence, we found there was sufficient evidence allowing a reasonable trier of fact to conclude that defendant had knowledge of his cousins' criminal purpose and acted with intention to aid his cousins in the commission of their offenses against Froylan Lopez, a known narcotics dealer. Id. ¶ 51. Specifically, we found sufficient evidence to support defendant's convictions under accountability principles despite defendant's trial testimony that he remained at home with his girlfriend, mother, and sister the night before the shooting, and his brother's testimony that he, and not defendant, drove the Oldsmobile that narcotics surveillance officers observed circle Lopez's house. Id. ¶¶ 51-53. Defendant's undisputed presence as a getaway driver outside Lopez's house on the date in question, his flight with his cousins after they shot Lopez, and circumstantial evidence of defendant's prior knowledge of his cousins' criminal design established defendant's accountability for the home invasion and aggravated battery of Lopez with a firearm. Id. We noted that, although defendant testified at trial that he believed he was driving his cousins to a job interview, there was circumstantial evidence otherwise. Id. ¶ 52. For instance, the night before the shooting, police intercepted a call wherein Jason Jaramillo told Luis Diaz, who owed the victim money for drugs seized by police, that he and Wellington were going to pay their cousin $1000 "just to drive," and Jason mentioned that his cousin drove a small expensive car. Id. Coincidentally, defendant testified at trial that he drove his cousins to Lopez's house in an Audi TT, which he described as a small sports coupe. Id. As to the propriety of the State's rebuttal argument, we noted that the prosecutor was entitled to comment on defendant's failure to call his girlfriend, mother, and sister to support an alibi defense because defendant injected their existence into the case, and we ultimately found the prosecutor's comments were reasonable inferences based on the evidence presented at trial and did not impermissibly shift the burden of proof onto defendant or deprive him of a fair trial and warrant reversal of his convictions. Id. ¶ 60.

¶ 9 In 2013, defendant filed a pro se postconviction petition seeking to vacate his jury convictions and sentences for home invasion and aggravated battery with a firearm, or alternatively to reinstate his 10-year sentence for aggravated discharge of a firearm under the original plea agreement. Defendant alleged in his petition that he received ineffective assistance of plea counsel, who misinformed him that if he pled guilty to aggravated discharge of a firearm, he would be sentenced to 10 years' imprisonment to be served at 50% and that "after all of [his] good time was accumulated, [he] would only serve 2 ½ to 3 years in jail." Defendant also alleged that trial counsel 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, 2016 WL 3442719.

¶ 12 In 2015, defendant filed a pro se "Complaint for Mandamus " alleging that the circuit court judge who granted defendant's motion to withdraw his guilty plea and vacate judgment, lacked jurisdiction to do so. The circuit court denied defendant leave to file the complaint for mandamus , and on appeal therefrom, we affirmed the denial of leave after granting appointed counsel leave to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (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, filed the subject motion for leave to file a successive postconviction petition, along with the proposed petition. In his motion, defendant asserted he could establish cause and prejudice to raise a claim of ineffective assistance of counsel because his initial postconviction petition was defective "due to misrepresentations made to him by his appellate counsel and that appellate counsel engaging in an impermissible 'ghost writing' of the petition, and that those defects were therefore not caused by [defendant], and that he was prejudiced due to the claims not being raised." Defendant also asserted he was excused from showing cause and prejudice in presenting claims of newly discovered evidence and actual innocence.

¶ 14 In his successive petition, defendant stated that he sought postconviction relief based on claims of ineffective assistance of trial counsel, newly discovered evidence, and actual innocence. Defendant acknowledged the requirement that he show cause for failing to raise the ineffective assistance of trial counsel claim in the initial postconviction petition and prejudice resulting therefrom. He argued "[b]ecause the [defendant]'s initial post-conviction counsel made representations that he could file the Petition as-is, rather than informing the [defendant] that he needed affidavits, the [defendant] was caused to file a defective initial Petition."

¶ 15 On the merits, defendant first argued that he was prejudiced by trial counsel's failure to call as witnesses Luis Madrid, Kayla Rincon, and Stephanie Araujo, considering the "available testimony discussed" in their supporting affidavits. Specifically, Luis Madrid averred that on April 24, 2007, he accompanied Arthuro Miranda, defendant's younger brother, to his cousins' 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, 367 Ill.Dec. 503, 982 N.E.2d 181, abrogated on other grounds , People v. Davis , 2014 IL 115595, 379 Ill.Dec. 381, 6 N.E.3d 709. The cousins averred in strikingly similar affidavits that on April 25, 2007, Wellington asked defendant to drive him and Jason to a job interview with a person who owned a landscaping business in Melrose Park, that Jason and Wellington were carrying firearms concealed in their pants or waistband, and that they never told defendant about their plan to commit a crime. The cousins acknowledged that the police intercepted a telephone call wherein Jason stated he and Wellington were going to recruit one of their cousins to be a getaway driver for $1000 but claimed that was a lie they told Luis Diaz, who owed Froylan Lopez money for drugs that had been seized by police.

¶ 19 On January 6, 2017, the circuit court entered a written order denying defendant leave to file his successive postconviction petition. Regarding defendant's claim of actual innocence, the circuit court found that the affidavits 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, 77 Ill.Dec. 775, 461 N.E.2d 398 (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 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, 421 Ill.Dec. 833, 102 N.E.3d 114 ), and we may affirm that decision on any ground of record ( People v. Johnson , 208 Ill. 2d 118, 129, 281 Ill.Dec. 38, 803 N.E.2d 442 (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, 360 Ill.Dec. 784, 969 N.E.2d 829 (citing People v. Eddmonds , 143 Ill. 2d 501, 510, 161 Ill.Dec. 306, 578 N.E.2d 952 (1991) ); People v. Kokoraleis , 159 Ill. 2d 325, 328, 202 Ill.Dec. 279, 637 N.E.2d 1015 (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 , 2016 IL App (1st) 160984, ¶ 59, 417 Ill.Dec. 80, 87 N.E.3d 364.

¶ 24 Successive postconviction petitions, like the one at bar, are disfavored under the Act. People v. Jones , 2017 IL App (1st) 123371, ¶ 41, 417 Ill.Dec. 186, 87 N.E.3d 938. 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, 360 Ill.Dec. 784, 969 N.E.2d 829 ; People v. Brown , 2017 IL App (1st) 150132, ¶ 36, 418 Ill.Dec. 446, 90 N.E.3d 604. It is incumbent upon defendant to first obtain "leave of court" to institute a postconviction proceeding. Edwards , 2012 IL 111711, ¶ 24, 360 Ill.Dec. 784, 969 N.E.2d 829. 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, 115 S.Ct. 851, 130 L.Ed.2d 808 (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, 417 Ill.Dec. 186, 87 N.E.3d 938. Newly discovered evidence refers to evidence discovered after trial that could not have been discovered sooner by defendant through due diligence. Id. On the other hand, evidence is not newly discovered "when it presents facts already known to a petitioner at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative." Brown , 2017 IL App (1st) 150132, ¶ 42, 418 Ill.Dec. 446, 90 N.E.3d 604. "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, 417 Ill.Dec. 186, 87 N.E.3d 938. Finally, conclusive evidence is the most important element of an actual innocence claim (see People v. Washington , 171 Ill. 2d 475, 489, 216 Ill.Dec. 773, 665 N.E.2d 1330 (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, 408 Ill.Dec. 1, 64 N.E.3d 1086 (quoting People v. Sanders , 2016 IL 118123, ¶ 47, 399 Ill.Dec. 732, 47 N.E.3d 237 ).

¶ 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, 360 Ill.Dec. 784, 969 N.E.2d 829 ). However, the proposed testimony of the cousins, that they lied to Luis Diaz about paying one of their cousins $1000 to be their getaway driver and did not reveal their criminal plan to defendant, is immaterial because such testimony is irrelevant and not probative of defendant's innocence under an accountability theory. Rather, the proposed testimony is cumulative because the jury heard defendant's testimony that he believed he was driving his cousins to a job interview and was not aware of their criminal plan. We find that defendant's actual innocence claim fails because he cannot establish the most important element of such claim, i.e. , that the proposed testimony of his cousins is " 'so conclusive that it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.' " Id. The cousins' averments do not exonerate defendant because he was convicted of the underlying crimes committed by his cousins under an accountability theory, which only requires that the accountable person intend to promote or facilitate the commission of the underlying crime. Id. ¶¶ 46-47, 55-57. The evidence contained in the cousins' affidavits merely affects the sufficiency of the evidence and does not totally vindicate defendant. Id. ¶ 57 (construing People v. Adams , 2013 IL App (1st) 111081, ¶ 36, 374 Ill.Dec. 351, 995 N.E.2d 490(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, 399 Ill.Dec. 732, 47 N.E.3d 237.

¶ 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, 408 Ill.Dec. 623, 66 N.E.3d 415 ; 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, 398 Ill.Dec. 785, 44 N.E.3d 1197. 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, 408 Ill.Dec. 1, 64 N.E.3d 1086 (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, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002). "Prejudice" refers to an error that so infected the entire trial that the resulting conviction violates due process. Davis , 2014 IL 115595, ¶ 14, 379 Ill.Dec. 381, 6 N.E.3d 709 ; People v. Flores , 153 Ill. 2d 264, 279, 180 Ill.Dec. 1, 606 N.E.2d 1078 (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, 402 Ill.Dec. 892, 53 N.E.3d 23. 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, 416 Ill.Dec. 545, 84 N.E.3d 527 (citing People v. Cotto , 2016 IL 119006, ¶ 41, 402 Ill.Dec. 50, 51 N.E.3d 802 ). We also acknowledge defendant's reliance on People v. Nicholas , 2013 IL App (1st) 103202, 369 Ill.Dec. 855, 987 N.E.2d 482, and People v. Warren , 2016 IL App (1st) 090884-C, 405 Ill.Dec. 453, 58 N.E.3d 714, 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, 379 Ill.Dec. 381, 6 N.E.3d 709.

¶ 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.

Presiding Justice Neville concurred in the judgment and opinion.

Justice Hyman specially concurred, with opinion.

¶ 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, 188 Ill.Dec. 201, 618 N.E.2d 771 (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, 360 Ill.Dec. 885, 969 N.E.2d 930.

¶ 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 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.

      Jason and Wellington Jaramillo are not parties to this appeal.

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

      Mr. Dvorak also represents defendant in this appeal.

      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.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Denzel PITTMAN, Defendant-Appellant.
    No. 1-15-2030
    Appellate Court of Illinois, First District, Fourth Division.
    March 15, 2018
    Michael J. Pelletier, Patricia Mysza, and Deepa Punjabi, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Denzel Pittman was found guilty of the first degree murders of his girlfriend Jade Hannah, age 17; her mother Stacy Cochran, age 43; and her younger sister Joi Cochran, age 11. The trial court subsequently sentenced defendant to a mandatory term of natural life in prison. On appeal, defendant does not challenge his conviction but argues that the imposition of the mandatory natural life sentence violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution because he was 18 years old at the time of the murders.

¶ 2 Because defendant does not challenge his conviction, we will discuss the evidence presented at defendant's March 2015 bench trial only as necessary to understand the facts of the case to consider his sentencing claims.

¶ 3 Defendant was arrested and charged with the stabbing deaths of Jade Hannah, Stacy Cochran, and Joi Cochran at their residence, located at 11106 South Bell Avenue in Chicago. The victims lived in a second floor apartment of a multiunit building comprised of six apartments, with two apartments on each floor. The family moved into the building in approximately August 2010. Linda Abraham lived on the second floor across the hall from the victims. The Thompson family, comprised of Arthur and Sherry Thompson, their daughter Courtney, and Courtney's son, lived in the first floor unit underneath Abraham's apartment.

¶ 4 On November 29, 2010, at approximately 9:40 p.m., Courtney Thompson arrived home from work and observed Jade sitting on the steps between the first and second floors with defendant. Courtney went into her apartment and heard Jade and defendant talking, but could not understand what they were saying. She began to work on a computer near the front door of the apartment. Her parents were in their bedroom watching television. A short time later, all three heard screams and a female child calling for her mother. Arthur got out of bed and opened the front door to the apartment. The screams had stopped when he opened the door. He immediately directed his wife to call 911. All three came into the hall and observed Jade lying face down on the landing between the first and second floors. Sherry was a nurse, and she attempted to resuscitate Jade after determining that Jade did not have a pulse. When Sherry turned Jade over, she observed stab wounds in her neck and chest. As she attempted CPR, Sherry noticed air coming from the stab wounds.

¶ 5 As Sherry was working on Jade, defendant came out of the victims' apartment and closed the door. He asked Sherry if the police had been called and if they saw who did it. He said he was going to find the offender. Courtney and Arthur observed blood on defendant's clothing. As he was leaving, he came back to retrieve his jacket, which was on the banister in the hallway. The Thompsons gave a description of the offender to police. Courtney and Arthur subsequently identified defendant as the individual leaving the victims' apartment in separate viewings of a lineup.

¶ 6 Abraham testified that she heard screams in her apartment and thought it was children playing. She went to her door and looked out her peephole. She observed a young man from the side with his fist moving rapidly up and down. She stated that it looked like the man was punching someone, but she was unable to see who or what he was punching. Abraham said the young man was holding up the person with his other hand. She did not observe a knife. She described the young man as African-American and medium height. As she watched, she observed the young man move out of sight into the apartment. She stepped away from the door to change into clothing from nightwear. While she changed, she heard screaming from the back of the victims' apartment. She then looked through the peephole and saw the young man and did not hear any screaming. She testified that she was "distraught." She waited to open the door until it was quiet. When she opened the door, she heard voices that she recognized as the Thompsons. She came out and observed blood on the wall. She also observed Sherry attempting to resuscitate Jade. When the police arrived, they directed the officers to the apartment.

¶ 7 Lieutenant Michael Ryan arrived on the scene right behind the paramedics. The paramedics immediately began to work on Jade but indicated to him that she was deceased. He went to the apartment and knocked. When he received no response, he entered the unit. He observed Stacy "laying in a pool of blood" just inside the unit. There were crutches nearby, which was later explained was due to Stacy's recent surgery. He went to the back of the apartment and observed Joi's legs also "in a pool of blood." He and an officer went through the apartment and determined that no one else was present. He stationed officers outside the apartment to keep the scene secure until the forensic team arrived. He then responded to a radio call of a sighting of the suspect. A forensic officer testified that the back door to the unit was closed and locked, stating that one of the locks required a key to open and the key was not present to open the door. He subsequently found a key and observed no damage to the door.

¶ 8 Joseph Banks testified that he lived about three blocks from the scene. On November 29, 2010, at around 10:30 p.m., he was watching television with his wife when defendant walked up to their house and knocked on the door. He opened the inner door but left the outer door closed. He observed defendant as dirty, shaking, and out of breath. Defendant told Banks that he had lost his keys and asked to use their phone to make a call. Banks passed a phone to defendant on the porch. He heard defendant tell his mother to come and get him. Defendant then handed the phone back to Banks. Banks did not observe any blood on the phone. Defendant left. Banks hit redial on the phone and the call was answered by a person who identified herself as defendant's mother. Banks then observed several police cars speed past his house. He called 911 to report his encounter with defendant.

¶ 9 At approximately 10:30 p.m., police officers received call with a description of the offender on the radio. One officer testified that he and his partner observed an individual matching the description. They pulled over, announced their office, and asked defendant to come over, but defendant fled on foot. The officer's partner gave chase on foot, but they did not take him into custody. The officer radioed that defendant was running. Another officer testified that he received the description and toured the area. He observed defendant behind some bushes near a retirement home. When the officer announced his office, defendant fled around the building. Lieutenant Ryan then arrived at the scene. Defendant was taken into custody by the officer, and Lieutenant Ryan read defendant his Miranda rights. Defendant told Lieutenant Ryan that he was coming from his girlfriend's house on Bell, and when asked what happened, defendant said he was "just defending myself."

¶ 10 Forensic scientists testified that DNA samples were taken from defendant's pants and compared to DNA profiles of the victims. The scientist testified that a DNA profile taken from one clipping of defendant's pants matched Stacy's DNA profile within a reasonable degree of scientific certainty. This DNA profile would be expected to occur in approximately 1 in 11 quadrillion black, 1 in 210 quadrillion white, or 1 in 15 quadrillion Hispanic unrelated individuals. A second clipping from defendant's pants matched Joi's DNA profile within a reasonable degree of scientific certainty. This DNA profile would be expected to occur in approximately 1 in 6.7 quadrillion black, 1 in 220 quadrillion white, or 1 in 100 quadrillion Hispanic unrelated individuals. A third mixed sample from defendant's pants could not exclude Jade, but could exclude Stacy and Joi. The DNA profile could be expected to occur in approximately 1 in 520 million black, 1 in 1.7 billion white, or 1 in 700 million Hispanic individuals. The medical examiner testified that all victims suffered multiple stab wounds, which were fatal, and the manner of death was homicide. Specifically, he testified that Jade suffered 22 stab wounds, Stacy suffered 38 wounds, and Joi suffered 12 wounds. He also stated that Jade had ligature marks around her neck where she was wearing a chain and her jaw bone was fractured.

¶ 11 Thomas Johnson testified that in December 2010, he was an inmate in the Cook County jail with pending cases and was assigned to a cell with defendant for four days. Johnson stated that defendant initially told him he was charged with a shooting but later said he was charged with three murders. According to Johnson, defendant told him that his girlfriend was cheating on him and he "lost it." Defendant said that if he could not have her, then he did not want anyone to have her. Defendant stabbed her with a pocket knife. While he was stabbing Jade, her mother came out with a knife. Defendant then stabbed Stacy and then looked for Joi and stabbed her because he did not want her to identify him. He worried that the neighbors saw him, and he had blood on his clothing. Defendant said he threw away the knife. He told Johnson that he did not feel bad about killing Jade and Stacy, but he felt bad about killing Joi.

¶ 12 Johnson testified that he discussed defendant's defense. Johnson told defendant to plead insanity, but defendant wanted to claim self-defense since Stacy cut his hand. Johnson admitted that he planned to use his testimony to benefit his pending criminal cases, but he did not receive any benefit for his testimony.

¶ 13 A Park Forest police officer testified that in May 2010, he was assigned as a juvenile officer to a domestic battery case involving defendant, who was under 18 at that time, and Jade. After defendant was read his Miranda rights, defendant stated that he and Jade had an argument at his house and he prevented her from leaving by grabbing her shirt and he pushed her. The officer observed Jade with a red mark on the right side of her face and a scratch on her neck.

¶ 14 After the State rested, defendant moved for a directed finding, which the trial court denied. Defendant rested without presenting any evidence. Following arguments, the trial court observed that the evidence was "overwhelming" and found defendant guilty of the first degree murders of Jade, Stacy, and Joi.

¶ 15 Subsequently, defendant reported having psychological issues and requested a fitness examination. Defendant was found fit for sentencing. Defendant filed a motion for a new trial, which the trial court denied.

¶ 16 At sentencing, the State presented defendant's birth certificate, showing that he was 18 years old at the time of the murders, and Joi's birth certificate, showing she was 11 years old at the time of her death. The State presented victim impact statements from family members, two of the statements were read before the court. Defendant submitted letters from his mother, grandmother, and grandfather. The State argued for consecutive sentences. Defense counsel conceded that the case required a sentence of natural life and argued for the sentences to run concurrently.

¶ 17 The trial court stated that it reviewed the presentence investigation report and listened to arguments of the attorneys as well as the evidence in aggravation and mitigation. The court then made the following findings.

"The Court would note, as the State has clearly proved, that [defendant] was 18 years old at the time of the commission of these offenses. Consequently, the application of cases such as [ Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ] out of the United States Supreme Court, [ People v. Davis , 2014 IL 115595, 379 Ill.Dec. 381, 6 N.E.3d 709 ], perhaps even [ People v. Miller , 202 Ill.2d 328, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002) ], two latter cases from our Illinois Supreme Court, are not by their terms applicable because [defendant] was not a juvenile at the time of this offense, but had attained his majority and was 18 years old when he murdered Jade, Stacy, and Joi.
As both sides point out, there is only one sentence that could be pronounced, configured in one way or another, and that's a sentence of natural life. The Court has no discretion in that regard as required by Section 5-8-1(a)(1)(c)(2) of the Unified Code of Corrections [ ( 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014) ) ] which requires the Court to sentence someone to natural life when they are found guilty of murdering someone under the age of 12, which applies with respect to Joi Cochran, and if they are found guilty of murdering more than one individual, which again is certainly the case here. But beyond pronouncing any sentence, it flows automatically or I should suppose mandatorily under the law, there's still a couple of facts and circumstances that bear noting.
The facts of this case are beyond disquieting. They show a course of conduct that began with what [defendant] did to Jade Hannah, a 17-year-old girl who was stabbed 19 times, was strangled, her jaw fractured while obviously in connection with this incident because when the family from the apartment below saw her minutes earlier she was just fine. The circumstances then show quite clearly that after killing Jade in this manner, after murdering her, [defendant] then stabbed Stacy Cochran, Jade's mother, numerous times close inside the door of the apartment where Stacy lived with her children at 111th and Bell. Stacy sustained 29 stab wounds, 11 incised wounds, which the State pointed out, a total of 38 wounds, an horrific attack. And on top of the horrid nature of that attack, it cannot be ignored, cannot be not noted [sic ] that at the time she was attacked in this manner she was literally hobbled; she was on crutches; she was lamed in some manner * * *. But she was on crutches and had no more ability to defend herself and her children from [defendant's] attack against them than I do not right now to fly to the moon. Unspeakably cowardly.
And following the vicious assault, the vicious fatal assaults upon Jade and upon Stacy, it is clear from the circumstances of the * * * physical evidence that [defendant] then turned his attention to Joi Cochran, 11 years old, 4-foot, 11 inches tall, 98 pounds, as evinced by the testimony of the medical examiner, who then suffered nine stab wounds, three incised wounds. A course of conduct that is beyond craven, it is beyond my ability to express with any accuracy the horror inflicted on those ladies, those women, those children at that time and that lingers forever after in the hearts and minds of their loved ones, their family, and their friends.
It has to be said, [defendant], that what you did on November 29, 2010 reveals with certainty and without exception the depth and breadth of the darkness of your heart, your extraordinary narcissism, and the criminal selfishness that more than justifies the sentence that is required by the law, a sentence of natural life."

¶ 18 The trial court then sentenced defendant to a term of natural life on each of the counts of murder, to run concurrently.

¶ 19 This appeal followed.

¶ 20 On appeal, defendant argues that his mandatory natural life sentence as applied in his case violates the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ) and the proportionate penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ) because the sentence was mandated without a consideration of defendant's age and other mitigating factors. Pursuant to section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections, defendant was subject to a mandatory term of natural life imprisonment under two bases: he was over the age of 17 and was found guilty of murdering an individual under the age of 12, and that he was found guilty of murdering more than one victim. 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2014).

¶ 21 Initially, the State asserts that defendant failed to preserve his sentencing challenges and is forfeited from raising them before this court. "It is well settled that, to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required." People v. Hillier , 237 Ill. 2d 539, 544, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010). Defendant did not object or file a postsentencing motion. Therefore, we review defendant's claims under plain error.

¶ 22 Illinois Supreme Court Rule 615(a) provides that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). "In the sentencing context, a defendant must then show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing." Hillier , 237 Ill. 2d at 545, 342 Ill.Dec. 1, 931 N.E.2d 1184. Defendant bears the burden of persuasion under both prongs. Id. For the reasons that follow, we find no clear or obvious error occurred in imposing defendant's sentence.

¶ 23 The eighth amendment to the United States Constitution, applicable to the states via the fourteenth amendment, bars cruel and unusual punishment, namely punishment that is "inherently barbaric" or is disproportionate to the offense. Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The proportionate penalties clause requires that sentences should be determined " 'both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.' " People v. Rizzo , 2016 IL 118599, ¶ 28, 406 Ill.Dec. 488, 61 N.E.3d 92 (quoting Ill. Const. 1970, art. I, § 11 ).

¶ 24 " 'Constitutional challenges carry the heavy burden of successfully rebutting the strong judicial presumption that statutes are constitutional.' " Id. ¶ 23 (quoting People v. Patterson , 2014 IL 115102, ¶ 90, 388 Ill.Dec. 834, 25 N.E.3d 526 ). "That presumption applies with equal force to legislative enactments that declare and define conduct constituting a crime and determine the penalties imposed for such conduct." Id. " 'To overcome this presumption, the party challenging the statute must clearly establish that it violates the constitution.' " Id. (quoting People v. Sharpe , 216 Ill. 2d 481, 487, 298 Ill.Dec. 169, 839 N.E.2d 492 (2005) ). "Courts have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute's validity." Id. " 'An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. [Citation.] In contrast, a facial challenge requires a showing that the statute is unconstitutional under any set of facts, i.e. , the specific facts related to the challenging party are irrelevant.' " Id. ¶ 24 (quoting People v. Thompson , 2015 IL 118151, ¶ 36, 398 Ill.Dec. 74, 43 N.E.3d 984 ).

¶ 25 Defendant first contends that his mandatory natural life imprisonment violates the eighth amendment's prohibition of cruel and unusual punishment based on recent United States Supreme Court cases analyzing the evolution in the imposition of harsh punishments for minors. See Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham , 560 U.S. 48, 130 S.Ct. 2011, Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

"In Roper , the Supreme Court held that the eighth amendment prohibits the death penalty for juvenile offenders. Roper , 543 U.S. at 568[ 125 S.Ct. 1183]. The Court reasoned that the 'death penalty is reserved for a narrow category of crimes and offenders,' and that 'juvenile offenders cannot with reliability be classified among the worst offenders.' Id. at 569[ 125 S.Ct. 1183]. In Graham , the Supreme Court held that the eighth amendment forbids a sentence of life without the possibility of parole for juveniles who did not commit homicide. Graham , 560 U.S. at 74[ 130 S.Ct. 2011] * * *. The Court said that, although the state is not required to release a juvenile during his natural life, the state is forbidden 'from making the judgment at the outset that those offenders never will be fit to reenter society.' Id. at 75[ 130 S.Ct. 2011] * * *. * * * In Miller , the Supreme Court held that the eighth amendment prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders, including those convicted of homicide. Miller , 567 U.S. at [479-80, 132 S.Ct. 2455]. The Court stated that a judge must have the opportunity to look at all of the circumstances involved before determining that life without the possibility of parole is the appropriate penalty. See id. at [479-80, 132 S.Ct. 2455]." People v. Harmon , 2013 IL App (2d) 120439, ¶ 48, 389 Ill.Dec. 254, 26 N.E.3d 344.

¶ 26 More recently, in Montgomery , the Supreme Court clarified its holding in Miller , finding that Miller "announced a substantive rule that is retroactive in cases on collateral review." Montgomery , 577 U.S. at ----, 136 S.Ct. at 732.

"The [ Montgomery ] Court asserted that ' Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." ' Id. at ----, 136 S.Ct. at 733 (quoting Miller , 567 U.S. at [480, 132 S.Ct. 2455] ). The Court repeated that ' Miller requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence.' Id. at ----, 136 S.Ct. at 734. According to the Court, '[a] hearing where "youth and its attendant characteristics" are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.' Id. at ----, 136 S.Ct. at 735 (quoting Miller , 567 U.S. at [465, 132 S.Ct. 2455] )." People v. Holman , 2017 IL 120655, ¶ 38, 418 Ill.Dec 889, 91 N.E.3d 849.

¶ 27 The Illinois Supreme Court in Holman considered the applicability of Miller and Montgomery in Illinois.

"Under Miller and Montgomery , a juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant's conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation. The court may make that decision only after considering the defendant's youth and its attendant characteristics. Those characteristics include, but are not limited to, the following factors: (1) the juvenile defendant's chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant's family and home environment; (3) the juvenile defendant's degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant's incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant's prospects for rehabilitation." Id. ¶ 46 (citing Miller , 567 U.S. at 477-78, 132 S.Ct. 2455 ).

¶ 28 In the present case, it is uncontested that defendant was 18 and was not a minor at the time of the murders. Nevertheless, he asserts that the trial court should have been given the opportunity to consider mitigating factors in imposing the sentence of natural life. Specifically, defendant argues that the trial court was precluded from considering mitigating factors in addition to his youthfulness. He sets forth several claimed mitigating factors, which were included in his presentence investigation, but no testimony was presented nor was any specific argument advanced regarding these factors. According to defendant, the trial court should have been permitted to consider his mental health, including a diagnosis for bipolar disorder, the fact that he had been shot in the chest by a police officer in 2010 during an arrest for aggravated unlawful use of a weapon unrelated to the present case, his history of domestic violence by his father and maternal grandfather in his childhood, exposure to domestic violence against his mother by his father, and no prior criminal convictions before this offense. Defendant contends that the imposition of a mandatory natural life sentence is unconstitutional as applied to his case without considering any of his numerous youth-related mitigating factors. Defendant maintains that his requested relief "does not require this Court to hold that mandatory life sentences is always unconstitutional when imposed upon defendants under the age of 21." (Emphasis in original.) We disagree.

¶ 29 There is one significant difference between the imposition of defendant's sentence and the holdings in Miller and Montgomery , defendant was not a juvenile when he committed the murder of three individuals. Defendant attempts to extend the holdings to "youthful" offenders, but fails to cite any authority in which an eighth amendment violation has been found for an adult offender. Those cases, by their own terms, apply to juvenile offenders, not "youthful" offenders.

¶ 30 Recently, the First Division of this court considered a similar as-applied eighth amendment challenge by an 18-year-old offender in People v. Thomas , 2017 IL App (1st) 142557, 411 Ill.Dec. 818, 74 N.E.3d 127. In that case, the defendant was convicted of first degree murder while using a firearm, attempted first degree murder, and attempted armed robbery. The defendant received a total sentence of 80 years for all offenses. Id. ¶ 1. On appeal, the defendant argued that his 80-year sentence represented a de facto life sentence in violation of the eighth amendment and the proportionate penalties clause. Id. After considering Roper , Graham , and Miller in an as-applied eighth amendment challenge, the reviewing court concluded that the defendant "cannot demonstrate" how his challenge implicated the eighth amendment as an adult defendant. Id. ¶ 28. In reaching its conclusion, the court reviewed the Illinois Supreme Court's holding in People v. Reyes , 2016 IL 119271, 407 Ill.Dec. 452, 63 N.E.3d 884, in which the supreme court found that a mandatory 97-year term for a juvenile offender operated as a de facto life sentence and implicated Miller protections. Thomas , 2017 IL App (1st) 142557, ¶ 26, 411 Ill.Dec. 818, 74 N.E.3d 127 (citing Reyes , 2016 IL 119271, ¶¶ 9-10, 407 Ill.Dec. 452, 63 N.E.3d 884 ). The Thomas court noted that the Illinois Supreme Court had not indicated that it would extend Miller to adult offenders. Id. See also People v. Harris , 2016 IL App (1st) 141744, ¶ 56, 410 Ill.Dec. 591, 70 N.E.3d 718, petition for leave to appeal allowed , No. 121932, 416 Ill.Dec. 383, 84 N.E.3d 365 (Ill. May 24, 2017) (finding that the eighth amendment did "not protect" the defendant from a de facto life sentence because he was over 18 at the time of the subject offense).

¶ 31 We agree with the court's conclusion in Thomas that Miller protections under the eighth amendment are not implicated in cases of adult offenders. We find the reasoning equally applicable in this case involving a mandatory sentence of natural life and find no basis to depart from the court's finding. Since defendant has failed to provide any authority to support his assertion that an eighth amendment as-applied challenge under Miller can be extended to an adult offender, we reject his constitutional challenge.

¶ 32 Next, we turn to defendant's argument that his sentence should be vacated based on a violation of the proportionate penalties clause of the Illinois Constitution.

¶ 33 The proportionate penalties clause of the Illinois Constitution provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. "While courts of review are generally reluctant to override the judgment of the General Assembly with respect to criminal penalties [citation], it is also true that when defining crimes and their penalties, the legislature must consider the constitutional goals of restoring an offender to useful citizenship and of providing a penalty according to the seriousness of the offense [citation]." (Internal quotation marks omitted.) People v. Miller , 202 Ill. 2d 328, 338, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002). "With regard to the statute at issue, we have recognized that the legislature considered the possible rehabilitation of an offender who commits multiple murder[s], and the seriousness of that offense, in determining that a mandatory minimum sentence of natural life imprisonment is appropriate for the offense of multiple murders." Id.

"We have recognized three different forms of proportionality review. A statute may be deemed unconstitutionally disproportionate if (1) the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community; (2) similar offenses are compared and the conduct that creates a less serious threat to the public health and safety is punished more harshly; or (3) identical offenses are given different sentences." Id.

¶ 34 Defendant asserts that the imposition of a mandatory natural life sentence in his case shocks the moral sense of the community. In support, defendant relies on this court's decision in People v. House , 2015 IL App (1st) 110580, 410 Ill.Dec. 971, 72 N.E.3d 357, and the Second Division's decision in Harris , 2016 IL App (1st) 141744, 410 Ill.Dec. 591, 70 N.E.3d 718. The State, on the other hand, argues that this case is more analogous to this court's decision in People v. Ybarra , 2016 IL App (1st) 142407, 409 Ill.Dec. 192, 67 N.E.3d 404. We agree with the State for the following reasons.

¶ 35 In House , the defendant was 19 years old with no history of violent crimes and was found guilty under a theory of accountability for the murder of two victims. House , 2015 IL App (1st) 110580, ¶ 101, 410 Ill.Dec. 971, 72 N.E.3d 357. Accordingly, the defendant was sentenced to a mandatory term of natural life under the same statute as defendant in this case, section 5-8-1(a)(1)(c)(ii). 730 ILCS 5/5-81(a)(1)(c)(ii) (West 1998). We found significant that the defendant's sentence involved the convergence of the accountability statute and the mandatory natural life sentence. House , 2015 IL App (1st) 110580, ¶ 89, 410 Ill.Dec. 971, 72 N.E.3d 357. We analyzed the reasoning behind the Supreme Court's recent decisions involving youthful offenders, as well as articles discussing the differences between youth and adults. Id. ¶¶ 90-100.

¶ 36 After considering the facts of the case, the recent Supreme Court decisions, and research on youthful offenders, we concluded that the defendant's sentence was unconstitutional as applied to his case. Id. ¶ 101. "Given defendant's age, his family background, his actions as a lookout as opposed to being the actual shooter, and lack of any prior violent convictions, we find that defendant's mandatory sentence of natural life shocks the moral sense of the community." Id.

¶ 37 In contrast, the defendant in Ybarra was convicted of the shooting deaths of three teenagers and was subsequently sentenced to a mandatory natural life sentence. The only issue raised on appeal was whether the defendant's sentence violated the proportionate penalties clause. Ybarra , 2016 IL App (1st) 142407, ¶ 1, 409 Ill.Dec. 192, 67 N.E.3d 404. Like defendant in the present case, the defendant in Ybarra contended that House was applicable in his case. We rejected that contention.

"We find the instant case distinguishable from House based on one significant difference. The defendant in House did not pull the trigger, but acted as a lookout and was found guilty under a theory of accountability. Our analysis specifically considered the union of mandatory sentencing with guilt under a theory of accountability. No such union exists in this case. While he was also a young adult at 20 years old, defendant was the person who pulled the trigger repeatedly and killed three teenagers on the street as they left school one afternoon. We cannot equate defendant's actions with our analysis in House . For this reason, we find our reasoning in House to be inapplicable to defendant's case." Id. ¶ 27.

¶ 38 We see no reason to depart from this conclusion in the present case. As in Ybarra , defendant was the perpetrator in the violent stabbing deaths of Jade, Stacy, and Joi. For that reason, the holding in House is inapplicable.

¶ 39 We acknowledge that the reviewing court in Harris reached a different result and concluded that the defendant's de facto life sentence violated the proportionate penalties clause. Harris , 2016 IL App (1st) 141744, ¶¶ 68-69, 410 Ill.Dec. 591, 70 N.E.3d 718. There, the defendant received a total sentence of 76 years for first degree murder and attempted first degree murder, where 50 years of the sentence was due to mandatory firearm enhancements. Id. ¶ 15. In considering the defendant's proportionate penalties challenge, the majority found the case more factually similar to House ( id. ¶¶ 63-64 ), while the dissent concluded Ybarra was more on point ( id. ¶¶ 83-85 (Mason, J., dissenting) ). The majority reasoned that the record showed the defendant's rehabilitative potential and that the trial court expressed "dissatisfaction" with the required minimum sentence to be imposed. Id. ¶ 66 (majority opinion). The majority further discussed the effect of the applicable statutes as eliminating the trial court's discretion to construct a sentence with a chance to return the defendant to society. Id. ¶¶ 71-72. The dissent maintains that "it is for the legislature, and not the courts, to revisit the sentencing scheme and afford greater discretion to trial judges." Id. ¶ 81 (Mason, J., dissenting). The dissent shared the majority's concern over the length of the minimum prison sentence, but found that "the remedy lies with the legislature, not in ad hoc determinations made by this court or by trial judges." Id. ¶ 82. As noted above, People v. Harris is currently pending in the Illinois Supreme Court. See People v. Harris , No. 121932, 416 Ill.Dec. 383, 84 N.E.3d 365 (Ill. May 24, 2017) (petition for leave to appeal allowed).

¶ 40 Further, as we did in Ybarra , we have reviewed defendant's claims of mitigating factors, including a diagnosis with bipolar disorder, experiencing and witnessing domestic violence, and suffering a gunshot wound to the chest in the course of an arrest. We appreciate defendant's struggles with mental illness, but we note that defendant was evaluated and found fit to be sentenced. Defendant was a legal adult when he strangled and stabbed his girlfriend Jade, then stabbed her mother Stacy, who was on crutches, and then stabbed her 11-year-old sister. Given the violent and serious nature of these murders, a mandatory sentence of natural life does not shock the moral sense of the community and does not violate the proportionate penalties clause of the Illinois Constitution.

¶ 41 Additionally, the trial court findings suggest that the court would have imposed the same sentence if it had discretion. During sentencing, the trial court stated:

"what you did on November 29, 2010 reveals with certainty and without exception the depth and breadth of the darkness of your heart, your extraordinary narcissism, and the criminal selfishness that more than justifies the sentence that is required by the law, a sentence of natural life ." (Emphasis added.)

¶ 42 The trial court's finding further supports our conclusion that defendant's mandatory natural life sentence does not shock the moral sense of community and does not violate the proportionate penalties clause. Until we receive further guidance from the Illinois Supreme Court or the legislature amends the sentencing statutes, we must affirm the imposition of a natural life sentence in this case.

¶ 43 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 44 Affirmed.

Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.


text:
    NEIGHBORHOOD LENDING SERVICES, INC., Plaintiff-Appellee, v. Kathy GRIFFIN, a/k/a Kathryn Griffin ; Mark P. Thomas ; Neighborhood Lending Services, Inc. ; Illinois Housing Development Authority; Neighborhood Housing Services of Chicago, Inc.; and Unknown Owners and Non-record Claimants, Defendants
    (Kathy Griffin, a/k/a Kathryn Griffin, and Mark P. Thomas, Defendants-Appellants).
    No. 1-16-2855
    Appellate Court of Illinois, First District, Fourth Division.
    March 15, 2018
    Bardia Fard, of The Law Center, LLC, of Chicago, for appellants.
    Phil Schroeder, of McCalla Raymer Leibert Pierce, LLC, of Chicago, for appellee.
   JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 The instant appeal arises from a mortgage foreclosure action filed against defendants Kathy Griffin and Mark P. Thomas by plaintiff Neighborhood Lending Services, Inc. Plaintiff attempted to serve defendant personally, but Griffin, defendant's wife, informed the process server that defendant did not live at the residence and would provide no information as to how to reach him. Plaintiff then sought to serve defendant by publication, which it was granted leave to do. Eventually, a default judgment was entered against all defendants. Over a year later, defendant appeared and filed a motion to quash service, which was denied, and the trial court ultimately entered an order approving the sale of the property. Defendant appeals, arguing that his motion to quash was improperly denied. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On August 7, 2014, plaintiff filed a complaint of foreclosure against Griffin and defendant, alleging that Griffin was in default on a mortgage on real property located on South Racine Avenue in Chicago (Racine property). Defendant was named in the lawsuit "by virtue of the fact that, upon information and belief, he/she/they may have some interest in the subject real estate" that was inferior to plaintiff's interest.

¶ 4 On September 2, 2014, plaintiff filed an affidavit for service by publication pursuant to section 2-206 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-206 (West 2012) ). As this document serves as the basis for defendant's appeal, we describe it, and the other documents concerning service, in detail. The affidavit was certified under section 1-109 of the Code ( 735 ILCS 5/1-109 (West 2012) ) by one of plaintiff's attorneys and averred that "[t]his Affidavit is made upon information and belief." The attorney averred that defendant "cannot be found on diligent inquiry so that process cannot be served upon [him]" and listed the last known address of defendant as the Racine property address. Accordingly, plaintiff requested that the clerk of the court publish a notice of pendency of action in accordance with section 2-207 of the Code ( 735 ILCS 5/2-207 (West 2012) ) and to mail copies of such notice in accordance with section 2-206 of the Code.

¶ 5 Plaintiff also filed an affidavit of the special process server, which was certified under section 1-109 of the Code by Ed Tomaszek, a process server with ProVest, LLC (ProVest), a licensed private detective agency, and was notarized. Tomaszek averred that he attempted to serve defendant at the Racine property at 9:35 a.m. on August 9, 2014, but was unable to serve defendant because "Kathy Griffin said defendant doesn't live here and refused any information." The affidavit also described the Racine property as "single family, 1.5 story brick and frame, attached garage, not for sale, utilities on."

¶ 6 Additionally, plaintiff filed an affidavit of Kim Carpintier of ProVest, which was notarized and averred that, "[o]n 08/13/2014, I performed a diligent inquiry to discover the place of residence of the Subject/Defendant named below by doing the acts which are described with particularity below. Upon diligent inquiry by me, the Affiant, the place of residence of the Subject/Defendant cannot be ascertained." The affidavit listed defendant's name as the "Subject/Defendant Name" and the Racine property address as the "Last Known Address of Subject/Defendant." Carpintier then averred that, using defendant's Social Security number, Carpintier located the Racine property address, and a review of defendant's credit file revealed the same address; there was no record found in an employment comprehensive database search. Carpintier then averred that she performed a directory assistance search that indicated that there was no telephone listing for defendant in Chicago, his last known city. Carpintier also averred that a driver's license search revealed no current record for Wisconsin or Illinois and a motor vehicle comprehensive database search revealed that defendant did not have current ownership of a vehicle in the state of Illinois. Carpintier also averred that she had performed the following inquiries, all of which resulted in no record found: (1) vessel search, (2) voter registration (national and state databases), (3) Department of State (professional licenses), (4) nationwide masterfile death search (Social Security Death Index), (5) nationwide aircraft search, (6) nationwide pilot search, (7) Illinois Department of Corrections, (8) Freedom of Information Act inquiry to United States Postal Service, (9) Cook County jail search, and (10) federal prison search. Carpintier also attempted to contact defendant via telephone on August 11, 2014: one phone number was disconnected, while a second phone number had a "generic voicemail," on which Carpintier left a message. Finally, Carpintier averred that, on August 11, 2014, she had performed searches of three social networks: (1) a LinkedIn search, in which Carpintier was unable to verify whether the provided results were those of defendant since no place of employment was listed in the investigative report; (2) a Facebook search, in which there was no verifiable information found and Carpintier was unable to determine if the remaining records pertained to defendant; and (3) a Google search, which provided no additional information and Carpintier was unable to determine if the remaining records pertain to defendant.

¶ 7 On September 11, 2014, plaintiff filed a certification from the clerk of the circuit court of Cook County that on September 3, 2014, a copy of the notice had been mailed to defendant at the Racine property address. On September 17, 2014, plaintiff filed a certification from the Law Bulletin Publishing Co. that the notice had been published in the Chicago Daily Law Bulletin on September 2, 9, and 16, 2014.

¶ 8 On November 12, 2014, plaintiff filed a motion for an order of default against all defendants, as no appearances had been filed in the case. On the same day, plaintiff filed a motion for a judgment of foreclosure and sale. On December 1, 2014, the trial court entered an order, finding all defendants in default, and also entered a judgment of foreclosure and sale.

¶ 9 Plaintiff mailed a notice of sale to defendant at the Racine property address on February 5, 2015, which provided that the Racine property would be sold at public auction on March 10, 2015; this sale presumably did not occur, as the record contains a second notice of sale that was mailed to defendant at the Racine property address on June 24, 2016, which provided that the Racine property would be sold at public auction on July 26, 2016.

¶ 10 On August 8, 2016, an attorney entered an appearance on behalf of defendant and Griffin. On August 9, 2016, defendant filed a "Motion (I) to Quash Service of Process or (II) in Alternative, Motion to Vacate Default Order." Defendant claimed that he was not properly served because plaintiff had failed to comply with the requirements for service by publication under section 2-206 of the Code and had failed to satisfy the requirements of Cook County Circuit Court Rule 7.3. As such, defendant claimed there was no jurisdiction over him. As relevant to the issues raised on appeal, defendant claimed that plaintiff had failed to conduct due inquiry or due diligence, as statutorily required, resorting to service by publication 26 days after the complaint was filed and after only one attempt at personal or substitute service. Defendant argued:

"Because Plaintiff failed to exercise any due inquiry or diligence, it failed to discern the following very simple, clear, and public facts that:
a. Defendant has resided at the Property since 2003. The affidavit of Mark P. Thomas and Kathy Griffin are attached hereto respectively as Exhibits D, E.
b. Defendant was residing at the Property at the time ProVest Services LLC attempted to serve him and at the time publication service was allegedly effectuated. Exhibit D, ¶ 3; Exhibit E, ¶ 3.
c. Defendant's name is physically located on the mailbox to the property. Exhibit D, ¶¶ 4-6; Exhibit E, ¶¶ 4-6." (Emphasis in original.)

In the alternative, defendant requested that the trial court vacate the default against him, arguing that he had meritorious defenses to the foreclosure action. The referenced exhibits D and E, which are purportedly affidavits from defendant and Griffin, are not contained in the record on appeal.

¶ 11 On August 12, 2016, plaintiff filed a motion for an order approving the report of sale and distribution and for an order of possession, claiming that a judicial sale was held on July 26, 2016, at which plaintiff was the highest bidder.

¶ 12 On August 25, 2016, the trial court entered an order denying defendant's motion to quash or, in the alternative, to vacate the default; defendant has appealed only the denial of the motion to quash and has not appealed the denial of the motion to vacate the default. The record contains a bystander's report indicating that, at the August 25, 2016, hearing on defendant's motion, defendant's counsel requested an evidentiary hearing "to address questions of fact raised by the Plaintiff's counsel and the court," which was denied.

¶ 13 On October 4, 2016, the trial court entered an order approving the report of sale and distribution and granting plaintiff possession. This appeal follows.

¶ 14 ANALYSIS

¶ 15 On appeal, defendant claims that plaintiff failed to comply with the requirements for service by publication by failing to demonstrate both due inquiry in ascertaining defendant's whereabouts and diligent inquiry in ascertaining defendant's residence. In the alternative, defendant argues that the trial court should have conducted an evidentiary hearing on the motion to quash.

¶ 16 In order to enter a valid judgment, the trial court must have jurisdiction over both the subject matter and the parties.

BAC Home Loans Servicing, LP v. Mitchell , 2014 IL 116311, ¶ 17, 379 Ill.Dec. 85, 6 N.E.3d 162. A judgment entered by a court without jurisdiction is void and may be challenged at any time. BAC Home Loans Servicing , 2014 IL 116311, ¶ 17, 379 Ill.Dec. 85, 6 N.E.3d 162. "The question of whether the circuit court had personal jurisdiction over a party is a question of law that is generally reviewed de novo ." Thompson v. Ross Dialysis-Englewood, LLC , 2017 IL App (1st) 161329, ¶ 14, 416 Ill.Dec. 847, 86 N.E.3d 1132 ; BAC Home Loans Servicing , 2014 IL 116311, ¶ 17, 379 Ill.Dec. 85, 6 N.E.3d 162. See also TCF National Bank v. Richards , 2016 IL App (1st) 152083, ¶ 25, 408 Ill.Dec. 512, 65 N.E.3d 988 ("Where, as here, the circuit court's denial of a motion to quash service is based on documentary evidence only, our review on appeal is de novo ."). De novo consideration means we perform the same analysis that a trial judge would perform. People v. McDonald , 2016 IL 118882, ¶ 32, 412 Ill.Dec. 858, 77 N.E.3d 26.

¶ 17 "Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party's voluntary submission to the court's jurisdiction." BAC Home Loans Servicing , 2014 IL 116311, ¶ 18, 379 Ill.Dec. 85, 6 N.E.3d 162. In the case at bar, defendant was served by publication pursuant to section 2-206 of the Code. " Section 2-206(a) of the Code [citation] allows a plaintiff to serve process on a defendant by publication in limited cases where the plaintiff has strictly complied with the requirements for such service." TCF National Bank , 2016 IL App (1st) 152083, ¶ 28, 408 Ill.Dec. 512, 65 N.E.3d 988. Section 2-206(a) provides, in relevant part:

"Whenever, in any action affecting property or status within the jurisdiction of the court, including an action to obtain the specific performance, reformation, or rescission of a contract for the conveyance of land, plaintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending." 735 ILCS 5/2-206(a) (West 2012).

¶ 18 Additionally, the circuit court of Cook County has adopted a local rule that further expands on the requirements of section 2-206(a) :

"Pursuant to 735 ILCS 5/2-206(a), due inquiry shall be made to find the defendant(s) prior to service of summons by publication. In mortgage foreclosure cases, all affidavits for service of summons by publication must be accompanied by a sworn affidavit by the individual(s) making such 'due inquiry' setting forth with particularity the action taken to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant(s) by inquiry as full as circumstances permit prior to placing any service of summons by publication." Cook County Cir. Ct. R. 7.3 (Oct. 1, 1996).

¶ 19 "Although the Code contemplates service by publication, our court long ago recognized that such service is 'an extraordinary means of serving notice-one unknown to the common law' and that, from the perspective of the person to be notified, it is the 'least satisfactory method' of giving notice and 'often it is no notice at all.' " Bank of New York Mellon v. Karbowski , 2014 IL App (1st) 130112, ¶ 13, 382 Ill.Dec. 513, 12 N.E.3d 792 (quoting Public Taxi Service, Inc. v. Ayrton , 15 Ill. App. 3d 706, 713, 304 N.E.2d 733 (1973)). Therefore, "a party defending notice by publication must demonstrate strict compliance with every requirement of the statute, including due diligence and due inquiry." TCF National Bank , 2016 IL App (1st) 152083, ¶ 30, 408 Ill.Dec. 512, 65 N.E.3d 988 (citing BankUnited v. Velcich , 2015 IL App (1st) 132070, ¶ 30, 389 Ill.Dec. 318, 26 N.E.3d 408 ).

¶ 20 In the case at bar, defendant argues that plaintiff failed to establish that it had conducted either due inquiry or due diligence, pointing to the fact that plaintiff made only one attempt to personally serve him and moved for service by publication only 23 days later. We do not find this argument persuasive. "Our courts have determined that these statutory prerequisites [of due inquiry and due diligence] are not intended as pro forma or useless phrases requiring mere perfunctory performance but, on the contrary, require an honest and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as circumstances permit." Bank of New York v. Unknown Heirs & Legatees , 369 Ill. App. 3d 472, 476, 308 Ill.Dec. 31, 860 N.E.2d 1113 (2006). "Where the efforts to comply with these statutory provisions have been casual, routine, or spiritless, service by publication is not justified." Bank of New York , 369 Ill. App. 3d at 476, 308 Ill.Dec. 31, 860 N.E.2d 1113.

¶ 21 Here, we cannot find that plaintiff engaged in "casual, routine, or spiritless" ( Bank of New York , 369 Ill. App. 3d at 476, 308 Ill.Dec. 31, 860 N.E.2d 1113 ) efforts to comply with the statutory requirements. The affidavit of Tomaszek established that on August 9, 2014, he attempted to serve defendant at the Racine property but was unable to serve defendant because "Kathy Griffin said defendant doesn't live here and refused any information." Carpintier averred in her affidavit that she then performed a number of searches for defendant's address, which revealed either no results or the Racine property address, and also attempted to contact defendant twice by telephone. The documents submitted by plaintiff thus establish that the process server was personally in contact with defendant's spouse at the Racine property and that defendant's spouse informed the process server that defendant did not live there and refused to provide any additional information. Upon conducting further searches, the process server was unable to discover any other possible address for defendant. This is not a case in which an unidentified neighbor in a multiunit building told the process server that " 'he heard' " that defendant had vacated the premises, such that further inquiry into the veracity of that statement might be necessary. See JPMorgan Chase Bank, National Ass'n v. Ivanov , 2014 IL App (1st) 133553, ¶ 53, 385 Ill.Dec. 843, 19 N.E.3d 1039. This is a case in which the defendant's spouse-a resident of the single-family home at issue-directly informed the process server that defendant did not reside at that address and no alternate address could be found.

¶ 22 Defendant's argument that he could have been found had plaintiff conducted a diligent search only serves to strengthen plaintiff's argument. Defendant argues that his and Griffin's affidavits establish that defendant did, in fact, reside at the Racine property at the time service was attempted and had done so since 2003. "A defendant may challenge a plaintiff's section 2-206(a) affidavit by filing an affidavit showing that upon due inquiry, he could have been found." Bank of New York , 369 Ill. App. 3d at 476, 308 Ill.Dec. 31, 860 N.E.2d 1113 ; TCF National Bank , 2016 IL App (1st) 152083, ¶ 31, 408 Ill.Dec. 512, 65 N.E.3d 988. First, as noted, the affidavits are not properly before this court, as defendant never supplemented the record with them. However, even if they were before this court, they would not be helpful to defendant's argument. These affidavits only show that, upon due inquiry, plaintiff had discovered the correct address for defendant and, despite Griffin's representations to the process server, he actually lived at the address at which plaintiff had attempted service. The affidavits do nothing to refute the process server's statement that Griffin had informed the process server that defendant did not live there and do nothing to indicate that defendant could have been successfully served if plaintiff had acted with due diligence. "[W]here plaintiff resided at the time of service is not at issue, rather whether plaintiff diligently attempted to serve defendant is the issue." TCF National Bank , 2016 IL App (1st) 152083, ¶ 34, 408 Ill.Dec. 512, 65 N.E.3d 988.

¶ 23 Indeed, it is not clear what defendant thinks would have occurred with more visits to the Racine property-would Griffin have truthfully informed the process server that defendant lived at that address and accepted service on his behalf? Would the process server have happened upon defendant opening the door himself and been able to serve him personally? Here, as noted, defendant's spouse directly informed the process server that defendant did not reside at the Racine property. There is no reason to believe that subsequent visits would have yielded any different results, and defendant points to nothing requiring the process server to repeatedly engage in knowingly futile visits before attempting a different method of service. Accordingly, we cannot find that the trial court erred in permitting service by publication in this instance.

¶ 24 We are also unpersuaded by defendant's argument that the trial court should not have considered the process server's statement that "Kathy Griffin said defendant doesn't live here and refused any information," which defendant claims was "textbook hearsay." This statement was not hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). "[I]t is axiomatic that an out-of-court statement that is offered into evidence for reasons other than to prove the truth of the matter asserted is not hearsay." (Emphasis in original.) People v. Darr , 2018 IL App (3d) 150562, ¶ 53, 419 Ill.Dec. 889, 95 N.E.3d 10. In the case at bar, the "statement" that Griffin made was that "defendant doesn't live here." This statement was not used for its truth but was used for its effect on the listener-it provides the reason why the process server did not attempt service again. "[S]tatements offered for their effect on the listener or to explain the subsequent course of conduct of another are not hearsay." People v. Carroll , 322 Ill. App. 3d 221, 223, 255 Ill.Dec. 950, 751 N.E.2d 44 (2001). Defendant acknowledges in his brief that "if Tomaszek's testimony was offered for the purpose of establishing that 'Kathy Griffin said [that] defendant [Mark Thomas] doesn't live here [at the Property]', it was clearly admissible." Here, it appears to have been offered in order to establish plaintiff's due diligence in attempting to serve defendant, and for that purpose, the trial court properly considered it.

¶ 25 Finally, defendant argues in the alternative that the trial court should have granted an evidentiary hearing on his motion to quash. However, "an evidentiary hearing is warranted only '[i]f the defendant is able to present a significant issue with respect to the truthfulness of the affidavit filed by the plaintiff's agent for service by publication.' " TCF National Bank , 2016 IL App (1st) 152083, ¶ 38, 408 Ill.Dec. 512, 65 N.E.3d 988 (quoting Citimortgage, Inc. v. Cotton , 2012 IL App (1st) 102438, ¶ 18, 364 Ill.Dec. 766, 977 N.E.2d 255 ). In the case at bar, defendant claims an evidentiary hearing should have been held to determine (1) whether defendant lived at the Racine property at the time service was attempted and (2) "whether Plaintiff's Affidavit for Publication [citation] and Rule 7.3 Affidavit [citation] filed on September 2, 2014 at 11:40 a.m. were filed prior to service by publication on September 2, 2014 (arguably the publication was circulated early in the morning when newspapers are generally printed/delivered)." (Emphasis in original.) Neither of these arguments warrants an evidentiary hearing.

¶ 26 First, as noted, it is irrelevant whether defendant actually lived at the Racine property at the time service was attempted. The question is whether plaintiff diligently attempted to find defendant to serve him personally. See 735 ILCS 5/2-206(a) (West 2012) ("plaintiff or his or her attorney shall file * * * an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her"). Defendant has not presented "a significant issue with respect to the truthfulness" ( Citimortgage , 2012 IL App (1st) 102438, ¶ 18, 364 Ill.Dec. 766, 977 N.E.2d 255 ) of the process server's affidavit with respect to the issues of whether Griffin told the process server that defendant did not reside at the Racine property or whether the process server's efforts to find a different address for defendant were sufficient. Accordingly, an evidentiary hearing on the question of defendant's actual residence was not warranted.

¶ 27 As to defendant's second argument about the timing of the publication, this issue was not raised before the trial court and is therefore forfeited on appeal. See Cholipski v. Bovis Lend Lease, Inc. , 2014 IL App (1st) 132842, ¶ 58, 384 Ill.Dec. 249, 16 N.E.3d 345 ("Issues not raised in the trial court are waived and may not be raised for the first time on appeal." (Internal quotation marks omitted.) ). Furthermore, plaintiff does not point to any authority stating that plaintiff's affidavits must be filed prior to the publication of the notice. Section 2-206(a) of the Code and local rule 7.3 are concerned with when the inquiries as to a defendant's whereabouts were made, not the date when the affidavits relating those efforts were filed. Finally, even if there was such a requirement, plaintiff has provided no affidavit or other evidence that the notice was published prior to the affidavits being filed and only relies on speculation as to the Law Bulletin's publishing schedule. Consequently, we cannot find an evidentiary hearing was warranted on this question.

¶ 28 CONCLUSION

¶ 29 For the reasons set forth above, the trial court properly denied defendant's motion to quash service where defendant's spouse had affirmatively informed the special process server that defendant did not reside at the property and the property address was the only address discovered for defendant after a comprehensive search.

¶ 30 Affirmed.

Justices McBride and Ellis concurred in the judgment and opinion.

      While the same law firm entered appearances on behalf of both Griffin and Thomas on appeal, its brief states that the firm is "Attorney for Mark P. Thomas," and the brief refers only to Thomas and involves only issues relating to Thomas. Accordingly, we refer to Thomas as "defendant" and refer to Griffin by name where necessary.

      The record reveals, and the parties do not dispute, that Griffin and defendant are married.

      Plaintiff's law firm had previously obtained a standing order from the trial court appointing ProVest, along with two other private detective agencies, as standing special process servers for purposes of service of process in mortgage foreclosure cases.

      The affidavit filed September 2, 2014, appears to contain a page that is not included in the record on appeal. The identical affidavit was also filed on September 9, 2014, and contains a page that is absent from the initial version. The second page of the September 2 affidavit is also missing a Bates stamp. The information we relate comes from the September 9 version of this document, which appears to be the complete version. Defendant does not raise any arguments as to this missing page on appeal, and there is no suggestion that the complete affidavit was not filed on September 2. Indeed, defendant's motion to quash contains the complete affidavit as an exhibit to the motion.

      Defendant claims that there was a computer system error that resulted in these exhibits not being made part of the record on appeal and requested leave to supplement the record with the missing exhibits. We granted defendant leave to file a supplemental record on September 28, 2017, but defendant has not filed a supplemental record. As we explain in our analysis, however, even if these documents were included in the record, it would make no difference in the result.

      It is not clear whether this is a properly-filed bystander's report. Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005) requires a bystander's report to be approved and certified by the trial court, which does not appear to have been done in the instant case. Illinois Supreme Court Rule 323(d) (eff. Dec. 13, 2005), permits an agreed statement of facts to be filed without certification; the bystander's report filed in the instant case contains signatures of two attorneys, one of which is defendant's counsel. It is unclear whether the second signature belongs to an attorney representing plaintiff.