back around discussing issue one which is the ineffective assistance of counsel argument regarding the forc as was his right ryan decided not to assess court services in the preparation of the pretty sensitive estimation report his invocation of that fifth amendment right to silence harbor was used against him at sentencing by the the court during sentencing found it significant in troubling that ryan refused to participate in the pre sentence procedure the court clearly he was not excused from cooperated with the court services officer who  officer of the court the court found that bryant's failure to participate in the pre sentence investigation process spoke volumes about his attitude and most importantly the court noted that his failure to participate in the preparation of the present investigation work was something that the court would take into consideration when it measured his rehabilitated potential now i say that final thing might be the most important because this final statement evidence the court's intent to use brian silence the invocation of a constitutional right when it was determining his rehabilitative potential as a constitutionally mandated factor that him at sentencing and so that the the really should we have here is whether this matter in the state's burden on that topic is very high in order for bryant's case not to be remanded for a new sentencing hearing this court would have to find that the course error did not contribute to his sentence beyond a reasonable doubt and based on this record we simply can't recheck conclusion brian was sentenced to twenty years more than the minimum such he could have received he was sixty five years here he was twenty forty two at around the time of trial he's going to spend the rest of his life in prison and so the question becomes why did the court feel that the sixty five your son's twenty years above the minimum was the right size for mr maggio well counsel relook at the court's comments don't you think th or demonstrates that there are other factors that weighed heavily on the court as far as this taking place in a business having people present possibly on to other people so can we say that the fact that he didn't cooperate with the he had signed wasn't necessarily a major factor in the court's since a determination that there are other factors that the court to consider is something absolutely the court did but the question is did the course analysis or determination regarding his rehabilitated potential that the court's conclusion but its failure to participate in the p s i i proceedings reduce tell me mean did he invoked his fifth amendment right he did in focus fit he didn't tell the court services officer no i'm not going to speak to you but he as the court of we put it willfully decided not to participate in the presence investigation so i'm still trying i want to get over the first issue ok i mean i don't i understand if in saying i'm not going to answer questions about marijuana use or things that aren't aren't particularly relevant to to the crime or to my my rehabilitation i'm not going to answer questions about explaining this matters like i had an illegitimate child or you know whatever i know defendant sometimes get hammered because they end up say nate had six children by six different people and they have mean judges make reference a kind of thing but unless you use your right to counsel i e getting advice from counsel about the level of participation you should engage in just flatly refusing does say something about reality potential it does say something about your acknowledgment that i think i was afraid for my life i understand it you know that wasn't accepted as a defense but here's here the positive things that i can tell you i mean that's what i would  that leaves me to the question we're talking about invoking the fifth amendment right and justice connect was just saying there are positive things that come out in a p s sound and so can you just say i'm here booking my fifth amendment right to not in this sort of thing at all i'm unaware of a case where a court services officer comes to prison and says i'd like to meet with you because i want to prepare this precise specification report i would have no precedent that would say the defendant is compelled to participate in any way shares or and i would agree with you i don't think that if indeed it has to but the question before us is two things first of all is their fifth amendment right against providing positive information i will not and in the end the question becomes even though you don't have to participate is it improper for the court to consider your failure to tell the court services office of the good things about her i'm not going to i'm going to hold against you the fact he didn't tell or services the good things about you and i'm not going to hold against you the fact you didn't tell them the bad things about let's suppose that it's not it's person is not going to cooperate with those people who can be supervising him or her and appears in doing that they may be suggesting you don't have a forty over me or i don't care about your services as a trial judge would i be in time to take that into account i think there are two different questions there because if it's an issue of the defendant talking to court services to determine whether or not he's a good candidate why do you know that without a p s on how do you know that with that without some determination of the defendant's background care there the things about them that don't come out in the tri both ways or hurt you hear about militia and sometimes that cuts both ways what's the difference well again i don't know that even if what we're talking even if that position is correct to the court services officer if i were in brian's position and i went to trial i was convicted i was going through the sense of process in the court services officer comes back i'm not going to talk to him at this point because the the information that i had given to that court services officer was information that was used to increase my prior sentence the court hearing when the court said that this was a factor that the court was going to use not in terms of whether something like probation that against you but how did the court now that he was in the book is that right i don't know that there needs to be a definitive exercise of that if he simply refuses to participate in that guys are just out to get i've already given his miranda but he doesn't say i want counsel i have not looked at that issue recently so i don't want to comment on what the  problem with even even if this is the way that the court use what occurred here there is no way to know whether the court you statements that could have incriminated right that he didn't provide as right against him in order for that to be help harmless the state has to show the thomas beyond a reasonable doubt this screams to me as a case where we're balancing defendant's unlawful use of a constitutional right against him versus giving him a new sense and hearing to ensure that he has sense appropriately weighed on that scale i think the answer comes out every time to let's not take a chance especially with the standard like this especially dumbest beyond a reasonable doubt especially with the constitutional issue let's not take a chance let's send this back and maybe he gets the sixty five years ago maybe but at least we know that he has been guaranteed a constitutional process something that this record demonstrates he was not given at this point brian maggio well there were factors at the core consider that during sentencing he was a father a husband a person he was a business on he'd been action nearly all of his life he grew up taken care of his grandfather of his father's grocery stores ever since he was a kid this isn't some harden criminal it's gone out there and perform a criminal act in this probably going to perform a criminal act again this was a crime of passion he should be given the opportunity to have a sense in hearing where there can be no question that the court consider really what this is what would be interesting to know when there are any any witnesses provided the information you're talking regarding i'm sorry has rehabilitated potential his connections the community has the court the court rights ensure that he has received a fair sentencing hearing and ensure that none of this twenty years that the court over the minimum that the court since into was a product of right invoking its constitutional right we would at least ask that this case be sent back federal something i'll see defense attorneys using and that is the forcible felony language in the self defense jury instruction the jury in this case was told that brian could have shot mark if he was in fear of receiving death or great bodily harm but what the jury wasn't told was he could also shot mark if he was worried that mark was going to commit a forcible felony now there may very well be forcible felony as that don't involve death or great bodily harm in fact what is me it says it lists the phoneys and says and any other felony which involves the use or threat of physical force or violence against an individual they had just had a physical altercation in the grocery store mark had threatened to beat ryan prior to this so severely that he would be unable to walk to work any long attorneys obligation was give the jury any reasonable grounds with which brian could have exercised his right to self defense which would include giving the jury this forcible felony language now what complicates this matter even further is the fact that during its closing argument the state told the jury when brian marshall followed his brother to the doorway of the store with the sky that he reasonably believed he was faced with deadly no and therefore he is non tiled to use deadly force and claim self defense on that basis that's not the law in illinois along illinois is that you can use deadly force in self defense if you believe you're going to be the victim  bodily harm or forcible felony but the jury was never told they've never heard this forcible felony language how does that square with the defendant's theory of the case in what way self defense because there's a gun in the car oh but part of bryant's defense was so so to give you a little timeline here before mike my time expired they had the scuffle they had the fight in the grocery store at that moment i shot so if brian thought that mark had a gun in the store were garza whether the jury believed that bryant's omar pull out that gun if brought if mark was carrying a gun on his person that's unlawful act given the fact that they just had this fight in the store if brian believed that his brother had a gun and was going to use it against him regardless of whether the jury which by the way deliberated for five hours in this case obviously the jury was thinking first first of all to be clear the state is not conceding error regardless of whether justice that listens to the concession or not i if i agree simply noted that the state agrees that the defendant enjoys  required to participate so the issue is if he does not participate can the court consider his non for to speciation as a as a factor i suppose in all fairness to defend it could you rely upon the silence of the defendant alone as a factor in aggravation indicating a lack of in this instance rehabilitation i think the court would or should be cautious there it does appear in the past that when a defendant has a constitutional right  the fact that he had both said right it generally you know to you cannot be used against him i mean that was the same thing that you just use the argument and argument of one couldn't defend it if he raises constitutional right not to say anything to the investigating officer could to state have used his silence at trial i believe we could not so if the defendant raises that same has eyes so as to properly educate him what his rights are counsel wasn't necessarily required again to use the phrase since that we have an argument number one when he when he investigating up sixty five years i think a fair reading of the record suggests not clearly this dependance joyce not participate in the p s i i did not significantly move the court court noted that it the statements of the victims of the impact it had upon the victims and the callousness of the act fact that this was that than his own brother the fact that he kicked his brother after shooting him all these things i think suggested to the force and attempt to defend himself against less than deadly force and i don't believe that is the law there is some confusing in loose language and the  statutes and in some of the previous decisions as to what and when an appropriate instruction concerning a portable felony would be i think that the use of the term w i don't believe it was the intent to adopt a definition of course spoke felony which would include simply any action that could potentially carry a physical threat that is a significant departure  from what has been required and the use of his self defense when you're using violence like that you're going to come out and kill someone and you shoot someone simply because he's carrying a weapon as w court we now have concealed carry you can legally carry a weapon just because someone has a weapon on them does not justify someone coming up and shooting you have to be in the imminent fear of a legitimate right similar to that which you are about to undertake so if you're going to take someone's life or you're going to do something which creates an unreasonable threat of physical harm jack i agree i mean if they if the defendant testified that i saw my brother reach for a gun and a reasonable inference from that was he's reaching forward in order to use it i therefore  became afraid for my own safety i thought he was going to shoot me so i shot him in self defense says perfectly in that instance would we need to forcible felony language now we would die the language that w entirely appropriate and in the two cases answered in the shamas discussed that very thing they never suggested in those previous cases that the standard is less than death or great bodily harm in those cases i was charged with multiple offenses one being battery but the court didn't suggest that you could kill someone by using a argument that you were being faced with a that forcible felony was harmless error because you could not get from you know one to the other he simply didn't make any sense and i think that is the law element and again it's not clear perhaps the court to take the opportunity to clear with regard to i don't know if there was another issue that was particularly argued that there was no discussion about the self defense the lack of a  reckless nature of the senate shooting his brother because he didn't have his glasses on or because the weapon use was perhaps not the most of has classes on it perhaps could have been a better shot if he did or if he used a weapon that was more accurate and he could have shot him in a more deadly fortune of his body that's hardly i issue is knowing vs reckless was his conduct knowing or was he simply not intending to actually shoot his brother at the time that he fired his weapon it was a reckless act on his part that has it's totally inconsistent with not only evidence but what the defendant's own argument a trial that if it had admitted that he pulled his weapon and tended to shoot his brother did should so i don't think the court was entirely appropriate  t the circumstances around this offense things of that nature these are all things though that the court had before it when it initially concurred in the sentence of thirty five years this wasn't new evidence that ok well i gave him thirty five years initially but now that i've heard all of this i think sixty five years as appropriate that is why when we look at the evidence that was presented at second sentencing hearing and we call out the things that the court verbiage i guess that the court used when it was imposing sentence talking about how this was a marks or crimes failure to talk to the author the p s i was a significant factor the colonel most health insulted by his decision not to participate in this process this was a factor that wasn't present as earlier sense and hearing and so i think we have to ask did it contribute even today even in our to this edition of twenty years the state can't meet its burden to show that it did not beyond a reasonable or that it's harmless beyond reasonable doubt that's why i say when you look at this case and we're weighing what we he was valuable as  justice system what expense is it to say we want to make sure that the defense constitutional right was not used against him i think he's you've made that argument  it's a little different when you phrase it you already know everything else now you know this so why is it that a defendant's failure to criticize a refusal to participate can be used against him or is that the failure to participate should not be used against him in this case as an aggravating factor i guess maybe not understand the question it well there's a difference between every defendant having a constitutional right and this defendant saying you already know everything right so why should you hold it against me now that i've been not only convicted in a jury myself i just i don't want to participate in i mean well i'm sorry i didn't need to know both you know here is how the court that we know again the reading the language that the court use it's almost as though the court was personally insulted by the fact the defendant chose not to participate that's something that can't be used against him that's that is that is the question should we are you asking us to say any time a defendant refuses to participate in the preparation of a pre sentence investigation that's an indication of their fifth amendment right and the poor can never consider that an aberration on the same under the facts and circumstances of this case the court should not have considered it and that's a difficult question for me answer because i haven't thought of all the permutations of this so in light of that what i will say is in this case it should not have been considered by the court and it obviously was and we know that based on the nature of the court's comments i'm going to go back to issue one just very quickly just for what you asked was armed and maybe getting raped use that gun against him i think there'd be a bill different verdict here because instead what the jury was told was you can find that brian acted in self defense if you conclude that bar called out the understand if he convince the jury that he reasonably believed that his brother was reaching for a gun to shoot him i would think that that would satisfy that instruction i see shot him if the jury disposed even that defense counsel should have done everything possible to make sure that there was a plausible theory so that brian could still have been acquitted under the self defense i think if the jury didn't believe that specific of a worsens his view or makes it more frightening huizi thought at first his brother was going to go get a gun correct now i realize is he has again correct