Owens v. Illinois State Police

2022 IL App (1st) 211284-U

• Court: Appellate Court of Illinois
• Decided: December 21, 2022
• Docket: 1-21-1284
• Status: Unpublished

Opinion

2022 IL App (1st) 211284-U No. 1-21-1284 Order filed December 21, 2022 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ORLANDO OWENS, ) Appeal from the ) Circuit Court of Petitioner-Appellant, ) Cook County. ) v. ) No. 20 CH 5029 ) ILLINOIS STATE POLICE and COOK COUNTY ) STATE’S ATTORNEY, ) Honorable ) Pamela McLean Meyerson, Respondents-Appellees. ) Judge, presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court. Justices Burke and D.B. Walker concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s decision denying petitioner relief from the Illinois State Police’s denial of his application for a Firearm Owners Identification card where petitioner failed to provide a sufficient record of the proceedings on appeal.

¶2 Petitioner Orlando Owens appeals from a circuit court order, entered after an evidentiary

hearing, denying him relief from the Illinois State Police’s (ISP) denial of his application for a

Firearm Owners Identification (FOID) card. On appeal, he argues that the court erred in denying No. 1-21-1284

his petition because he has not engaged in criminal activity for 22 years. Because petitioner failed

to provide this court with a sufficient record of proceedings, we affirm.

¶3 On January 16, 2020, petitioner applied to ISP for a FOID card and concealed carry license

(CCL). On the applications, he denied that he had ever been found guilty of a felony or convicted

of domestic battery. The Chicago Police Department objected to his application for a CCL “based

upon a reasonable suspicion” that he was “a danger to himself or others or a threat to public safety.”

The department attached an incident report showing that, in 2019, petitioner’s ex-wife reported

that he entered her business and threatened to kill her. She told him not to come back, but two

weeks later he returned and argued with her husband. He had followed and harassed her for

“several years.” A detective requested the investigation be suspended when he could not contact

petitioner’s ex-wife. The department also attached petitioner’s criminal history report showing he

was convicted of misdemeanor domestic battery in 1999, felony burglary in 1985, and

misdemeanor criminal damage to property in 1983.

¶4 On June 3, 2020, ISP denied petitioner’s application for a FOID card. In doing so, ISP

informed petitioner that his 1985 felony conviction prohibited him from possessing a firearm under

section 922(g)(1) of the federal Gun Control Act of 1968 (18 U.S.C. § 922(g)(1) (2018)) and

section 8(c) of the FOID Card Act (430 ILCS 65/8(c) (West 2020)). Additionally, petitioner’s 1999

misdemeanor domestic battery conviction prohibited him from possessing a firearm under section

922(g)(9) of the Gun Control Act (18 U.S.C. § 922(g)(9) (2018)) and section 8(l) of the FOID

Card Act (430 ILCS 65/8(l) (West 2020)). ISP also denied his application for a CCL on the ground

that he was ineligible for a FOID card. 1

1 The denial of petitioner’s application for a CCL is not at issue in this appeal.

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¶5 On July 20, 2020, petitioner filed a pro se petition in the circuit court, pursuant to section

10(c) of the FOID Card Act (id. § 10(c)), seeking relief from ISP’s decision to deny him a FOID

card. He explained that he had been hired as an armed security officer but could not begin without

a FOID card. He alleged that his domestic battery conviction had been “expunge[d]/seal[ed].” He

also attached documents showing that his domestic battery, burglary, and criminal damage to

property convictions had been sealed and impounded.

¶6 ISP filed an objection to defendant’s petition, arguing that it should be denied as he failed

to serve the State’s Attorney’s Office (SAO), as required by section 10(c)(0.05) of the FOID Card

Act (id. § 10(c)(0.05)). ISP also argued, among other things, that he failed to satisfy section

10(c)(2) of the FOID Card Act (id. § 10(c)(2)), as his criminal history “evince[d] a consistent

pattern of criminal activity and bad acts against intimate partners,” showing his danger to public

safety; he lied on his application that he had not been convicted of a felony; and he had not

submitted sufficient evidence that he was rehabilitated. ISP further asserted that he failed to satisfy

section 10(c)(3) (id. § 10(c)(3)), as granting him a FOID card would contradict the public interest

given his “repeated interactions with law enforcement as a result of actions that harm the welfare

of the State and its people.”

¶7 The circuit court granted petitioner leave to amend his petition to add the State’s Attorney

as a defendant, and SAO also filed an objection to the petition. SAO accepted that petitioner’s

burglary and domestic battery convictions had been expunged and did not disqualify him for a

FOID card.2 However, SAO asserted that granting petitioner a FOID card would contradict the

2 As noted supra, in ¶ 5, those convictions were sealed. They were not expunged.

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public interest given the nature of his convictions, including domestic battery, and would threaten

public safety.

¶8 On September 7, 2021, the circuit court issued a written order denying the petition and

leaving in place ISP’s order denying petitioner’s application for a FOID card. In the order, the

court noted that it had held an evidentiary hearing that day and summarized petitioner’s testimony.

According to the order, petitioner testified that he was employed as a laborer but was not actively

working. Petitioner had been offered a position as a watchman or security guard, “for which he

‘assumes’ he needs to be able to carry a gun.” Petitioner acknowledged his past mistakes but

testified he was a law-abiding citizen and wanted to support his children. On cross-examination,

petitioner initially denied the domestic battery conviction, then acknowledged that the record

showed a domestic battery conviction but stated he did not remember pleading guilty to that

charge. Petitioner did not intentionally misstate on his application that he had not been convicted

of a felony, as he believed the convictions “would be expunged by then.” The court noted that his

1985 and 1999 convictions had been sealed but not expunged.

¶9 The court further noted that petitioner called no witnesses besides himself and offered no

exhibits. Petitioner had previously provided character letters to the court via email but he did not

offer them into evidence. Moreover, the letters “did not address why the writers felt [he] would be

able to satisfy the significant responsibilities of gun ownership” and “did not mention gun

ownership at all,” and therefore, they would not have met petitioner’s burden of proof.

¶ 10 The court wrote that it was “encouraged” that petitioner had maintained a clean record for

the past 20 years. Nevertheless, the court found that petitioner presented insufficient evidence to

assess whether he was unlikely to endanger public safety. The court noted petitioner “did nothing

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to explain” his ex-wife’s 2019 accusation that he threatened to kill her. The court found

that“substantial justice” had been done and that petitioner did not meet his burden under

section 10(c) “to show that issuing him a FOID card would not be contrary to the public interest.”

It denied his petition. Petitioner filed a timely notice of appeal.

¶ 11 On appeal, petitioner contends that the court improperly denied him relief as he had been

rehabilitated since his convictions. He argues that, as a productive and rehabilitated citizen, the

denial of a FOID card violates his constitutional rights. Regarding the 2019 incident with his ex-

wife, he alleges that ISP’s incident report did not reflect that he “was not the defendant but the

[p]laintiff” in that incident, that petitioner was not arrested, and that his ex-wife’s husband had

physically assaulted him. Petitioner acknowledges that his character letters were not entered into

evidence but notes that he emailed them to the court.

¶ 12 The FOID Card Act provides that a circuit court may grant relief to a petitioner whose

application for a FOID card has been denied if the petitioner establishes “to the court’s ***

satisfaction” that:

“(1) the applicant has not been convicted of a forcible felony under the laws of this

State or any other jurisdiction within 20 years of the applicant’s application for a Firearm

Owner’s Identification Card, or at least 20 years have passed since the end of any period

of imprisonment imposed in relation to that conviction;

(2) the circumstances regarding a criminal conviction, where applicable, the

applicant’s criminal history and his reputation are such that the applicant will not be likely

to act in a manner dangerous to public safety;

(3) granting relief would not be contrary to the public interest; and

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(4) granting relief would not be contrary to federal law.” 430 ILCS 65/10(c)(1)-(4)

(West 2020).

¶ 13 Here, the circuit court determined after an evidentiary hearing that defendant failed to

establish to the court’s satisfaction that granting him a FOID card would not be contrary to the

public interest. Id. § 10(c)(3). We review that determination for an abuse of discretion. Evans v.

Cook County State’s Attorney, 2021 IL 125513, ¶¶ 37-41. A circuit court abuses its discretion

when its ruling is “arbitrary, fanciful, or one that no reasonable person would make.” Id. ¶ 41.

¶ 14 We initially note that Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires an

appellant’s brief to contain argument supported by citations to the authorities and pages of the

record relied on. Failing to cite relevant authority violates that rule and may result in forfeiture of

the issue. Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23. Moreover, we may strike a brief that

fails to comply with Rule 341 and dismiss the appeal. Holzrichter v. Yorath, 2013 IL App (1st)

110287, ¶ 77. The appellant’s brief must also concisely state the applicable standard of review for

each issue he raises and include a statement of jurisdiction. Ill. S. Ct. R. 341(h)(3), (4) (eff. Oct. 1,

2020). Pro se status does not relieve an appellant of the obligation to comply with our supreme

court’s rules governing appeals. Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517,

¶ 7.

¶ 15 Without outlining all the deficiencies in petitioner’s pro se brief, we note that it is lacking

as it is essentially an informal letter to this court. It contains several citations to statutes at issue,

but the bulk of the brief comprises arguments devoid of citations to the record or relevant

authorities. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Nor does it set out the standard of review or

contain a statement of jurisdiction. Ill. S. Ct. R. 341(h)(3), (4) (eff. Oct. 1, 2020). We may dismiss

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the appeal on that basis. Holzrichter, 2013 IL App (1st) 110287, ¶ 77. Nevertheless, ISP and SAO

have provided cogent response briefs and petitioner makes clear he is challenging the circuit

court’s order denying him relief from ISP’s decision. We may therefore entertain his appeal despite

any insufficiencies in his brief. Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App.

3d 509, 511 (2001) (insufficiency of pro se brief does not preclude review where we understand

the issue and the other party has filed a cogent brief).

¶ 16 However, we agree with ISP and SAO that petitioner has forfeited his argument that

denying him a FOID card violates his constitutional rights. “It is well settled in Illinois that an

appellant who fails to raise an issue before the trial court forfeits the issue and may not raise it for

the first time on appeal.” (Internal quotation marks omitted.) People v. Rodriguez, 2021 IL App

(1st) 200173, ¶ 58. Petitioner did not argue in his petition to the circuit court that ISP’s denial

violates his constitutional rights. He therefore may not raise that argument for the first time in this

court. Id. Moreover, he does not develop the argument or support it with citations to the record or

relevant law. It is therefore forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 17 That said, we may not overlook the deficiency of the record on appeal, which lacks a report

of proceedings, including a transcript of the evidentiary hearing or any acceptable substitute. In

their response briefs, ISP and SAO argue that, as the record on appeal lacks a transcript of the

evidentiary hearing, petitioner has failed to provide this court with a sufficient record to review

the circuit court’s judgment. We agree that meaningful review is precluded where petitioner has

not provided a report of proceedings or acceptable substitute.

¶ 18 The appellant “has the burden to present a sufficiently complete record of the proceedings

at trial to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984). The appellant

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is to submit as part of the record on appeal any report of proceedings (Ill. S. Ct. R. 321 (eff. Oct.

1, 2021)) containing transcripts he wishes to be included in the record (Ill. S. Ct. R. 323(a) (eff.

July 1, 2017)). The report of proceedings should include “all the evidence pertinent to the issues

on appeal,” such as “oral rulings of the trial judge.” Id. In lieu of a transcript, the appellant may

file a bystander’s report or agreed statement of facts. Ill. S. Ct. R. 323(c), (d) (eff. July 1, 2017);

Nunez v. C&C Investments of Chicago, LLC, 2022 IL App (1st) 211423, ¶ 33.

¶ 19 Without a sufficient record, we must presume that the trial court’s order conformed with

the law and had sufficient factual basis. Foutch, 99 Ill. 2d at 392; see also Evans, 2021 IL 125513,

¶ 38 (“[W]ere we to presume that an evidentiary hearing occurred but that we lacked a transcript

of the hearing, Foutch dictates that we would simply presume the trial court’s order was in

conformity with the law and had a sufficient factual basis.”). Moreover, “[a]ny doubts which may

arise from the incompleteness of the record will be resolved against the appellant.” Foutch, 99 Ill.

2d at 392. We will “especially” presume the trial court acted properly where the record is

incomplete and the appeal presents an issue which we review for an abuse of discretion. Gakuba

v. Kurtz, 2015 IL App (2d) 140252, ¶ 22.

¶ 20 Petitioner has not submitted a report of proceedings, bystander’s report, or agreed

statement of facts as part of the record on appeal. In its written order, the circuit court noted that,

at the evidentiary hearing, petitioner “did nothing to explain” his ex-wife’s 2019 accusation. The

court found that there was “little evidence” to assess whether petitioner was unlikely to endanger

public safety. As the court’s decision rested on the evidence at the evidentiary hearing, including

petitioner’s testimony, a record of that hearing is necessary for this court to review whether the

circuit court abused its discretion. See id. (Without a sufficient record, we presume that the trial

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court acted properly, “especially” when reviewing for an abuse of discretion). By failing to provide

that record, petitioner has not presented a record sufficient for us to review whether the circuit

court fully and accurately summarized the evidence, and we must presume the court’s decision

was proper.

¶ 21 We recognize that petitioner is acting pro se in this appeal, and that there is no evidence he

was represented by counsel in the circuit court. However, pro se litigants are presumed to know

any applicable rules and procedures. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 528 (2001).

Accordingly, as defendant failed to provide a transcript of the evidentiary hearing or acceptable

substitute, we must presume that the circuit court’s order conformed with the law and had sufficient

factual basis. Foutch, 99 Ill. 2d at 391-92; Evans, 2021 IL 125513, ¶ 38. We therefore affirm the

circuit court’s judgment.

¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 23 Affirmed.

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