altimeters thank your honor may please the court i'm assistant attorney general eric levin on behalf of the people i think it's important to note at the outset what the precise issue in this case is the issue at this point is not whether the defendant is entitled to post conviction relief the issue is not rather the defendant was wrongfully denied a direct appeal those issues will eventually be decided and indeed the people can see the defendant is entitled to a for second stage proceedings on his petition but the issue at this stage before this court is under what legal framework will the lower courts evaluate the defendant's claim that briefly if you recall the essence of the defendant's claim is that following oak defendant pled guilty and then was sentenced the defendant alleged in this post conviction petition that following sentencing he contacted his counsel and expressed concerns about the sentence that was according to defense allegations counsel effectively abandoned him at that point and told him you're on your own these are the defense allegations have not been considered by the court yet but the question for this court is just  that is the proper that that does state the gest of an ineffective assistance claim and that that is the proper standard and lete legal standard for analyzing the defense claim rather than this expansive and governing claims in an ineffective assistance of counsel which is precisely what the u s supreme court did in roe rocked this court later didn't torres people versus ross people versus edwards those were all very similar those are all cases with ver similar allegations and all cases which the courts and then analyzed under the strickland standard and so so if i can get going back to my point that is what wou to do we don't we don't concede that the ineffective assistance claim ultimately has merit we don't know that yet we can see that at the first stage which is all of this petition advanced to that he defendant did present the gist of a claim and  that's why we we ask the court to remain and so that the lower courts can then up you know advance it to the second stage where counsel be appointed he can file an amended petition the state can respond and from there the court can determine d argument he argued there that the court should have construed that letter as a motion for reconsideration and the court there held that no this was an ambiguously a notice of appeal those were the court's words the court essentially said that nothing in the letter suggested even remotely that the defendant intended anything other than a notice of appeal by that letter so the court rejected the rule six zero four d argument and dismissed the appeal then the defendant filed the the current post conviction petition at this point when the case again got to the appellate court that the appellate court essentially disregarded its prior opinion and the direct appeal and held that six zero forty had been violated it disregarded it rejected the both said argument in the family motion and the state's argument that a prior opinion was raised judicata on the world six zero forty issue and held to what the court should have done what the clerk should have done upon receiving that unambiguous letter was forwarded to the judge and that the judge at that point should a first of the clerk should not have than complied with his duties under six  file a notice of appeal after getting in on the biggest request to do so but should have been sent the letter to the court to the trial judge who at that point should have considered it as a notice of appeal or not as a pro se motion but as some third option which again there's no support the text of the six authority for this but should have considered it as a request to begin the process of appealing for which counsel should have been appointed so you're really saying that how a court got it right  correct but and it's and i think it's important because because we have the as we say the well established for million or ineffective assistance of counsel standards courts have been applying the standard for years they're familiar with  that it provides the best fit for the defendant's client rather than applying that standard we now have an appellate court decision expansively interpret ing will six zero four d in a way that not only contradicted the prior findings it made on direct appeal but in a way that has no support in the text of the rule no support in any of this court's precedents and really no support in any other part court opinions upon receiving one of these letters i think initially it's important that it's it's unclear exactly what the clerk would have to do and i think that's one of the biggest problems with the appellate court's ruling is where you been a more appropriate way to do this and established way to do this instead created this somewhat ambiguous procedures and that's what's important to know we agree we concede that in the cases  that the defendant cited people versus griffin people versus bonds people versus gonzales where there is an ambiguous communication from the defendant the court does have to liberally construe that as a pro se motion to appeal so even if as in this case they held it was unambiguously a notice of appeal following proper admonishments even in that case the court the clerk still has to forward it to forward the letter to the judge which first of all would is in contradiction to the clerk's duties under rule six zero six ed to file a notice of appeal but even more so once the water got to the judge the appellate court would have the judge not construe it the court can allow that and don't those are duties that brawl on defendant's counsel not on the court the court duties under i believe people versus foster in the other case in the second our brief is to properly admonish the defendant of what needs to be done before an appeal can be taken and again the defendant conceded on direct appeal that he was properly admonished and they haven't disputed that here so they were properly a again just briefly to follow up on this the the appellate court said that it was actions at the trial court level which deprive the defendant of his direct appeal the the defendant allegations though make make clear that his his claim is against trial counsel the allegations if true are the trial council's actions deprived him of his direct appeal the court again did everything it was required to do under rule six o five b any prompting from the defendant such as in this case a letter saying i want to appeal in law to without any prompting from the defendant the clerk filed a notice of appeal ultimately depriving the defendant of his ability to appeal because no motion had been file many other way even even lit even liberally construing it and for instance in people versus gonzales and people versus bonds we have cases where the defendant the lighter the defendant sends states facts and puts forth puts forth complaints about counsel's performance or about certain things that happened or about why he thinks the sentence can be reconsidered which then it's obviously in and in artful motion to reconsider but liberally construed it puts the court on notice that the defendant is trying to comply with the rule six zero four d requirements that he was admonished about under will six o five b here we have nothing like that simply statement i want to appeal my se g if the court has no further questions the people would ask that this court reversed the judgment of the appellate court and remand either to the trial court or the appellate court for consideration of defense claim under the ineffective assistance of counsel standards counsel my name's colleen morgan i'm from the office of the state appellate defender and i'm representing mr derrick brooks the main point that the state seems to be making in this case is that the appellate court has expanded what rule six zero four d is is going to  the trial courts that they have to if monish the defendants that they will get the assistance of counsel help to help them prepare and file any kind of post plea motions but when it gets to the point like it did in this case where  clerk is the one who's making the determination of whether the defendant is getting that sort of assistance of counsel that's where it becomes a problem so the appellate court has just stepped back and said look we have all of this is already in the lower courts that say if a defendant makes any sort of indication that he wants to appeal he should be given the assistance of counsel at least the opportunity to request that counsel and that's what's happened here mr brooks filed a letter with the circuit that he made based on  plea situation and moreover in cases like this one where he's doing it based on bad advice that fundamental fairness would require that he should have been appointed counsel to assist him or you requesting something different from  a defendant from getting the appointment of counsel until after he's filed a motion in the state's argument one that's legally sufficient is kind of counterintuitive when he's told that he's told not just that will says but he is a permanently told by and i think i don't think the court was saying that any kind of letter referencing the notice of appeal at any point should be just considered should be automatically sent to the trial judge conceivably and what happens probably in the majority of cases when the defendants are are asking to file a notice of appeal they're following the form of actions they're filling in the blanks and those things when the circuit court gets them i don't think there's going to be any question that that's what it's supposed to be it has to be a notice of appeal but in cases like this one when there's a little bit of ambiguity as to what he's wanting considering that it's a guilty plea if you think i want to appeal my sentencing and particularly in this case where he's doing that based on counsel's bad advice then in situations like put into words or at least if nothing else write the words motion to you know correct sentence or motion to withdraw a plea if that was what he wanted because those are the things that were missing in the proper allegations and the basis for what we would be appealing for him later after we were appointed so i mean conceivably yes if our appointment we had gone back i suppose that quickly and had the record which the record never gets prepared that quickly but that's assuming it had then i suppose they would the we go with the a male most of the appellate court this letter a notice of appeal but obviously a notice of appeal but it could be construed obviously as a notice of appeal was filed with the the clerk and then the clerk doesn't know whether or not a motion to reconsider the sentence has been filed or not so they end up shipping this off to the trial judge to make a further assessment i think their argument is a lot of the ministerial duties of attorney well i think that's a valid concern but i also think it has no merit i think practically trial courts deal with this sort of thing every day i mean it's their job to adhere to what the supreme court rules it's their job to consider pro s correspondence and filings and evaluate those in determining what needs to be done and it's their job to make sure that counsel is appointed one counsel needs to be a planet that's already their job it's part of their job of in their duty ensuring that the actual cases going to work or well the proceedings i mean thirty days is the length of time that the defendant has to file this motion and i don't think it's unreasonable to say that thirty days out from a appeal to play or a sentencing that the court should still be aware of its docket or be aware of you know what things are being filed or what it needs to do if a defendant in that space of time wants counsel appointed i think they would be doing that all through the proceedings and assuming that counsel has been already appointed and that's probably part of the problem with the way the language and six zero four d is worded is in cases like this one i support he seems to be as though it's really working for the cases where you have  and in this case this is because it's a post conviction petition we have to take the allegations that are true so mr brooks's said in his petition that he did consult with counts when counsel told him to file the letter so there's really no question of how would you define something like the case here and this is probably one that's on the spectrum of questionable communication this one's probably not you know going to be very questionable but at the same time notice of appeal or this is a notice of appeal he's saying i want to appeal my sentencing so case like that it might be a big questionable and certainly i think here i mean i know the state references the first appeal where the same panel of justices  said that you know this was just request to appeal clearly in this case they've got something different they've got something that it's requesting to begin the appellate process that it's a little bit more so if the three people who know the law can look at the same letter differently and find it questionable if one case and not then i think that would be the definition of questionable communication if you don't know for certain that it is a case there's it would still be wanting to appeal the process because after a trial to him it would be you can file a motion to reconsider your sentence so it might be questionable is he wanting to follow a motion to reconsider his s then certainly after a trial it's a little bit more of an issue of where is counsel why is counsel not doing this for him counsel is is still representing you know thirty days after a trial you would assume still representing the defendant so why is counsel not being directed or her question or at least given a copy of the defendant's correspondence to find out what is going on in that case i think a clerk should find that questionable run well i don't think that should be an issue because if if the motion is filed that would told the period for the notice of appeal to have to be filed anyway until all posts fully or post trial motions have when i see what you're saying but at the same time this case is already here and this case is here because we don't have a procedure to to make this work where if if if this had got sent back to the trial court  considered as a motion to reconsider sentence the trial court might have looked at it at that point said you know what that's not what it is but you know if it's taking care of it then had a point counsel you know it could have all been dealt with in the trial or it wouldn't be at this yours and then the first the first decision yes and the second one the same three justices said that if it was an indication that the defendant wanted to begin the appellate process but certainly  different too because we have the allegations from mr brooks saying the reason i filed the letter is because counsel told me to which of course we could have had in the direct appeal because it was outside the record so at the way that the court was considering it was also  i think the the key factor here is that we just don't know what the ramifications of the appellate court's newly crafted procedure will be and in a case like this where we don't know how it will affect future cases we don't know how it will play out with all these different intricacies and we have the ineffective assistance of counsel remedy which defendant concedes is adequate will provide him with all the relief he requests if his allegations are true there's just no reason actually cuts in our favor because it's been around a long time and yet we've never had an interpretation of it like we just got from the appellate court which i think shows how novel and unprecedented that interpretation was rule six zero four d motion could have been filed defendant himself upon seeing that his letter had been interpreted as a notice of appeal could have said whoa that's not what i intended and he could have filed a motion to reconsider trial counsel could have and perhaps even a public counsel who was appointed quickly could have but it again it goes back to the fact that it was not the trial court which and filing the motion then would have automatically withdrawn the notice of appeal if it hadn't filed within that thirty days i believe that's rule six of six b so again it was not any part of it was not true the trial court's actions which caused the defendant his injury in this case opposing counsel mention that court's duty to ensure the fairness of the proceedings and that that's true but this court's held that the rule six zero five be admonishments were specifically crafted to ensure the fairness of the proceeding so we have we do it's we do have again just quickly going back to the appellate court's procedures these these could be burdensome week they could have unintended effects on you know can a notice of appeal still be filed what's the time limits things that we just don't essentially what it would require is that after the defendant is properly admonished all the parties are that and then he files an unambiguous notice of appeal indeed the appellate court said any requests to appeal which would mean even if the defendant filled out a preprinted notice of appeal form so even more an ambiguous than this if if that's possible even in those cases it could not be filed as a notice of appeal the parties would have to be brought back into court and essentially the judge would have to re admonished the defendant of the rule six zero four d requirements even after you've already been properly admonish there again this there's just simply no reason to have to get into these potential problems that we just don't know how the five nine five three could be taken