under the act much like the state's making right now the state had argued that the issue was fortunate because it was specifically a literally was not in the post convention petition but the second district sad since the subject matter of the claim was the same meaning his confession should have been suppressed and he also made an argument related to how he will invent just writes a miranda with a s h on a completely different state's attorney and his right was not respected he also made several references  missile wrote him referencing a conversation that the two of them had where she said i'm not going to be raising any issues regarding your motion to suppress and in fact when he denied mr reid's petition he actually mentioned missiles letter when he was saying that other she did make an argument regarding some form of the sentence did not make any argument regarding his natural life sentences in eligibility for the death penalty and we would also know the judge better actually reviewed some claims regarding to his sentence because  made some sort of investigation from the claims into mr reed's argument not just regarding his sentence but also regarding his conviction so because of that of arguing that this this issue is actually not forfeited that he presented it quite clearly in his c the incorporated by reference as this court in the illinois supreme court has noted the common law record on direct appeal is part of the p c record and the judge who is reviewing the claims not what we want to make sure that the trial court judge  fairly down below and film to move just a presence or a statement which was the basis of essentially the crowd ration of the entire case there was one witness who was you know for lack of a better word not the most authorized legal sentence as he was not eligible for the death penalty based on his now being acquitted of intentionally murder so regardless of the richer issue mr reed also argued that this that this error renders the sentence  eligibility mystery's powers press a motion for reconsideration just clearly or said i found you eligible for a natural life sentence because i found you eligible under the b six aggravating factor and that's the reason why he has a natural life sentence again in the position of making the argument that not only must the underlying convictions smith says here's an example of how our different verdict forms would affect different sentencing consequences run in the streets north tyga sense and the second and what would turn out to be the bailey case in a death penalty here is that in the petition l statement with regards to the y did was say yes the remedy for smith's violation which the only supreme court decided in two thousand and nine under the death penalty circumstance of this exactly how mr reed has it or he was eligible for the natural life sentence because of his there are three sections to the prostate petition there's a very specific ineffective assistance of trial counsel there's a very specific trial court error and there's a very specific appellate counsel in effect that the claim that's before this court is discussed in the trial counsel in effect or said in the appellate court ineffectiveness orsen it doesn't appear anywhere and interestingly there is a claim of ineffectiveness of appellate counsel for failing to ra trial counsel in effect in this regarding a motion to suppress but it's on an entirely different issue which indicates that this defendant made the specific choice not to raise the issue of appellate counsel's alleged ineffectiveness on this issue he certainly could have raised it he talks about trial counsels lead up i don't know let's how do we know that he decided not to raise it because it's absent from the petition the appellate counsel ineffectiveness portion of this petiti has six to eight very specific claims that the trial counsel's ineffectiveness portion has again sixty eight very specific claims in it and some of them are repeated between the two but this one isn't if we look at what the thomas decision tells us and the cases that are cited within thomas and specifically i would cite to the whole decision which the thomas court talks about in coal v in the pro se petition the defendant raised claims of trial error these were errors that occurred at my trial in his post conviction petition he raised claims that appellate counsel was ineffective for failing to raise these claims of error that occurred and what the review in court this quiet the first district that was there's a huge difference between talking about errors that occurred and talking about them in terms of appellate counsel and you're talking about different parties when you're talking about the court and you're talking about appellate counsel and it distinguished the situation before it in thomas by saying in thomas we're talking about appellate counsel's errors in  and we're also not talking about the same parties and the court does talk about that in thomas and part of what it rested its sedition on is fact that the party who was being accused of the ineffectiveness in both situations appellate counsel that's not the situation here we have trial counsel and we have appellate counsel and it's very clear that the allegation that's made in the procedure petition is substantively different from the allegation that's made whether it be affidavits whether it be trial transcripts or something else so would the allegation on its face just because it's the same card he'd be sufficient to fulfill their apartment no it would not socially are implicit in the claim and we have to read between the lines or those that have to be clearly so far though the court in march stated well i believe that what the the cole court was saying was implicit in the claim where the claim itself is setting forth sufficient detail so for instance you can look at the claim and know what the claim is about like what the whether it be an invocation of a right or the claim that was made here in the petition against public counsel had to do with whether the actual confession that was put in was hearsay but in saxons so if you actually look within the post conviction pleading itself there is no mention at any point in that petition of the fact that his sentence is a legal  smith bailey issue i'm sorry the smith titus issue that his natural acceptances excessive there's absolutely no claim at all in there in regards to his sons and so what the defendant is doing now here is taking that one line and trying to expand that not only to include a motion that's not included in the actual claim but then to take that even further and ask the court to interpret the claim that is contained within the motion to reconsider a we're supposed to do something about voisins so which we do about them well i i would answer that in two ways first of all this is not there is the problem in various bailey was that when you interpreted the jury's verdict as a verdict of felony murder the sentence that was imposed of natural life had no valid basis because the what the court said was that you had to interpret that finding a felony murder as an implied acquittal on the other two forms of murder and so since the basis in derry a stately for the eligibility for the death penalty and natural life was decision in people versus bailey and faced this very issue and found in fact that the defendant's natural life sentence was valid it seems difficult to argue that hounshell should have anticipated and would have been successful on that same argument considering the fact that this very court to cite decided against the argument in ruling in the appellate court daily and while that decision was later overturned by the supreme sentence not withstanding the error so eight one a one b allows for an extended sentence of natural life in those cases where there's a finding by the child trier of fact that the murder was committed in a brutal or heinous action indicative of quantum field and in this case we have two different places in the record which would indicate that such a finding was made the first one of course is the finding that was made by the jury in regards to the arm robbery and of course i recognize that it was not made in terms of the murder but i would i would say that this or that we obviously would not have asked for that finding in terms of the murder because the only two sentences that were available to the court at that time would have been death or natural life so there would have been no reason for us to ask for the additional finding a brutal and heinous as to the mark but if you look at the slit and while one defendant is beating him another defendant is rummaging in the room looking for money looking for drugs looking for his guitars these actions are taking place simultaneously this is the classic felony murder where the murder and the robbery are taking place at the same time so the fact that the jury made this finding as to the armed robbery not only lets us know that certainly if they had been asked they would have made this finding as to the murder it also lets us know that the murder that took place at the same time was also brutal and heinous and indicative of what unfurled we can also look at the specific findings that were made by the court at the time of sentencing and this is the trial where he starts out his remarks by saying this was a brutal and heinous murder beyond anyone's imagination or even capacity to understand and he goes on with his findings and then he returns to it talking about this was a terrible terrible way to die this is horrible and that finding by the court again would allow for an independent valid basis under eight one a one b for the defendant's natural life sentence and in our brief we cited to you the cases of people versus symonds and people versus rest o where similarly after a jury trial the trial court made an independent finding that the murder that had taken place was brutal and heinous even though the jury had not made that specific finding and in cresco which was a supreme court case and simmons which was the second district case those extended sentences were upheld now withstanding any apprentice issue because the court found first of all that the facts of the case certainly supported such a finding and second that there was evidence in the record that the jury certainly would agree with that finding a brutal and heinous and here of course there is even less question that the jury would have agreed with that finding a brutal where we already have the finding that the armed robbery was brutal and heinous the the second thing that i would say that this or as far as why the sentence isn't void is because at the time that the sentence was imposed it was not a void that bailey added something that was not in snap and what bailey added was the fact that the felony murder verdict had to be interpreted as an implied acquittal of the other two types of murder and before bailey that language and that analysis did not exist that was not in smith and in fact before bailey there was case law almost exactly to the opposite which told us that where there was a jungle verdict form that we should assume that the conviction was on the highest order so i'm sorry but for smith there was a case law that told us that we should assume that the conviction was on the highest form of mark that's what snit told us but haley added to that and said not only do we have to assume that the conviction is for felony murder only we have to presume that  looking at the natural life sentence in this case on direct appeal said well the trial court here found that he committed these acts with the intent to commit with first with the knowledge that there was a strong probability that becomes or does it mean it wasn't voided back when it was for considered i mean if it's void it's void and illinois considers of the before you have an issue so we look backwards the gun cases are all going out because it was not at the time the truck  most the sentence in this case would be voidable but either way this court really doesn't need to be concerned with the voidness issue of it because there is a valid basis for the sentence based on the two findings that the week well obviously for the same reason that you said that the state didn't have the impetus to esther that finding at the time because of the situation really was going out the death penalty based on the heinous brutal fact you're never sick they're well it would be for the the natural the extended natural life and no he didn't specifically tied into that but it's in that regard it's just like crespo and simmons where the court the court's comment was this was a brutal and heinous murder and it wasn't this is a brutal and heinous murder and pursuant to eight dash one dash eight one v i'm giving this defendant a extended sentence of eight years so i don't i don't know i don't think that there is any specific requirement that the court necessarily is as specific as your suggesting that the court needs to be and what i'm saying is that this court can find a valid basis for the natural life sentence based on the comments of the court and i'd also point out that this is consistent with bailey in basically the state argued that because another factor on which they were relying in asking for the death penalty was that the victim was over the age of sixty and the murder was committed in a brutal and heinous action that the defendant was still eligible for either the death penalty or a sentence of natural life and what the court in bailey said is that would be a legitimate basis for imposing a natural life sentence but in bailey the court found that they couldn't do it because there was nothing in the record that they could look to to support that finding but they did indicate that that was a valid basis and in this case we have exactly what was lacking and they leave we have places where this court can look to the record and there are some similar issues that were raised here the defendant did challenge his natural life sentence on appeal i would acknowledge that in this case he he has framed it in terms i'm not really sure i start because counsel just completely undone bailey and which is personal to me because i was living daily so this is exactly what the state argued and lost in the illinois supreme court in bailey bailey said daly said they noted that with the car dismissed application a cap a set saying we had explicitly anticipated the situation and smith and she thousand and nine this is just an extension of the sniff doctrine that was in two thousand and nine this is found its direct appeal opinion that the only way that history was eligible for a natural life sentence was because of the death penalty as utility so the state's asking you to undo your own rather case when you found he was eligible for the death penalty and that's the reason first natural life sentence number one member to judge but i did not find that the murder was accompanied by brylin heinous behavior the illinois supreme court in addressing an identical argument said we will not accept the state's invitation to engage in our own assessment of the facts and turn in whether a natural life sentences proper which is exactly what they're asking you to do again in mystery each case this is identical to mr bailey with the exception of we're here on post conviction review and one not on direct appeal an interpretation of the facts from two thousand and ten is the exactly what the state's asking them to do to undo your own law of the case the only eligibility factor he was found guilty under was under the peace six that's the only way he was eligible for a natural life sentence there