is clear and unambiguous if the person who committed the offense was armed with a firearm fifteen years shall be added to the term of imprisonment imposed by the court the precise question for this court then is whether someone can be armed with a firearm through accountability for the purposes of the statute this question has already been answered for us by the legislature the firearm enhanced ment's were passed as part of a comprehensive sentencing scheme punishing offenders for the possession and use of a firearm but what's repeatedly been ignored by both the appellate court and by the state is that this statute was passed alongside two definitions in the same public act the definition of on with a firearm and the definition of personally discharged for the definition of on the fountain provides the person is considered armed with a firearm when he or she carries on or about his or her person or is otherwise on to the firearm this definition clearly shows that you can only be honored with a firearm if you are personally carrying a weapon it's just not logical to assume that the legislature intended for a condon this court specifically help the phrase otherwise on with the firearm refers to constructive possession or immediate access and timely control not accountability the appellate court and the state have both repeatedly ignored these definitions but these definitions are what makes this statute and the situation unique these definitions were passed alongside the statute and were intended to aid in the understanding of the statute therefore we cannot notes the lack of a word or phrase in a statute is not always pregnant with meaning well like freud said sometimes a cigar is just a cigar the state is trying to make a lot over the inclusion of the word personally and the second to tears and the lack of it in the first but there's not there's no reason to include personally in the fifteen year tear as its inclusion would have been redundant and line of these definitions if we put the word personally into the first tier of the firearm statute it would rip into the body of the statue it would read if the person committed the offense while personally on with a firearm in other words if the perp if the legislature i'm sorry if a person committed the offense well personally on the firearm that's if we put personally in the first chair if we saw it in the definition it would read if the person committed the offense while personally carrying on of the placement of the personally language in the definition as opposed to the statute itself to refer to a con ability they could have made that x rossley clear the legislature knows how to make its laws express it clear it knows how to include accountability like they did in the death penalty statute where they expressed really included accountability that's their job if they find you know if perchance you determine that this statute should not be applied t accountability and the legislature after opinion realizes that maybe that is what they really did want to do but they didn't include it in those words that's for them to go back and change it if that was their intent however we don't know and there's nothing in the language of the statute even suggest that that was their intent and even in their debates there's nothing about accountability mentioned at all and if they had in wanted the lack of the word yes the rule of lenity if you find that the language is unclear sense it doesn't specifically say that it should include accountability this court definitely should apply the rule of lenity and find in favor of the pent defendant moreover the state's interpretation leads to an absurd result the creation of this messy hybrid statute where one tear applies to accountability any other two do not and again as i said before why the legislature certainly could have chosen to create a hybrid statute that's not what they did here and they didn't express lee make that clear like they did in the death penalty statute and it's not the role of the judiciary to reconstruct the intention of the legislature here we need to follow what the words of the statute say and in this case the personally language is in the definitions as opposed to by the statute itself and it's press for the perfectly reasonable for the legislature to have done offender with increasing punishments and it seems clear that just because the person language is in the definition doesn't detract from the fact that this sentencing scheme punishes the person the principal the person who is personally that they were on with a firearm and now since they've just charged the firearm they're looking at punishment under the second or higher tier if the legislature had intended to have the statute apply through accountability there also simpler easier ways that the legislature could have written the statute it would have it probably would have been more harm based as it reads the statute says if the person committed the offense were armed with a firearm they could have written it if a firearm was used during offense or if the defendant possessed a firearm during the commission of the offense but as it stands they didn't do that they took be what is the word personally when it seems like under under your argument there is no need for the word earthly be to do three to three it's always a person is charging just like it's always a a person carrying a firearm under the definition so do  the words personally indeed two and three do three have any significance or are they just redundant i think they do have some significant i think that i'm a start with the first year and then i'll try to explain your question in personally carries on or about his or her person personally is showing that it's the principle i think carries is the action and then his or her person is who's doing the action and i think that that logic likewise applies to the other two well i mean i think we also have to look towards the definitions again and and the legislature also provided the definition of the phrase person i just started to farm and i think for them i mean it it seems like the definitions are almost redundant but they apply to different sections you know armed with a firearm on about his or her person there's personally language in there but in the phrase personally just charged a firearm that's also the personal language but the personally word argue that the personally language here is just happens to be in the definition and that the location doesn't necessarily mean accountability but it doesn't mean accountability it's just more of the legislature chose to put this personality language essentially i mean the word personal is included throughout the statute for a reason whether it's in the definition or it's in the body of the statute itself but that's how the legislature did it and there's nothing so rational about bat that this court should go beyond the plain language of the statute and read into something that isn't there for these reasons we ask that you apply the statute as written and vacate mr rodriguez his fifteen year out on which was applied to accountability he was the one who set up the meeting with the victim and who lured the victim into the alley to be robbed and killed he made the plans with the codefendant to not only rob and kill the victim but knew that the codefendant was planning on using a gun and in the alley this defendant was the one who personally introduced the codefendant to the victim and then stood as a lookout as the codefendant shot the victim in the head and then this defendant was the one who just pulls out of the murder the murder weapon as well as the body based on this the defendant was found guilty of first degree murder under accountability principle and sends to thirty five years he was also given an additional fifteen years under the enhancement statu the deterrent factor is to try to have either a single individual or a group criminal enterprise be deterred from contemplating using thinking about or actually having a gun during the commission of the offense and that that is satisfied by use by holding all persons who agree to get together in a criminal enterprise and use absolutely there's been going to quickly you heard me yes this will be you know again her argument does have a certain appeal i understand your stance toward construction or know why did that mean why can you think of that they did that i know it's that it doesn't have to be part of your argument because your argument is personally in the last two i'm not the first on accountability applies in the fifteen year attaches but why would they do that  because based on the intent and when looking at the three tiers of the provisions which is the fifteen twenty twenty five and as you go down the tiers the actions that are being sought to be deterred not only having the gun but then the legislature decides decided rightfully so that if you discharge that gun you get twenty and that person who discharges the gun based under the definition of that provision is the one who personally that gun and then the legislature took that even further realizing again the fatalistic nature of the instrument that they were trying to deter criminals from using and saying if you use that gun you personally have it use that gun and you cause personally in the in the to death and i understand that as well i just want to know why they would do that why they would in your opinion why would accountability only go to the least c because they just don't think accountability should apply to the west to know because they were fully aware of accountability principles and like other statutory construction like in in this court held in sa and jordan one and looking at triggering offenses for additional senses the consecutive or the extended in those holdings i mean the court did concede it's clearly said it's presumed that in an acting any s that the legislature was fully aware of accountability principles and the interpret in case law and found that unless the legislature clearly says that accountable defendants are not included or are excluded excuse me are excluded from the provision then it is presume that the legislature wanted accountable defendants here the legislature with the three tier made it clear that they expected or wanted the accountable defended to be included in the first provision and then use the word personally in the second and the third to ex lewd accountable defendants and when that personally is used in conjunction with the statutory definition of what is considered personally discharge a firearm which is what two and three it is live the legislature made it very clear that they were intending to limit those two provisions to person's right well under the rules of statutory construction all the words within that definition should be given meaning and when one looks at that definition there's two parts to it the first part which is when he or she carries on or about his person is a reference to the person having the actual physical possession of the firearm and then the other phrase the second part to that definition is the  or is otherwise armed with a firearm that necessarily means the person doesn't have actual possession and how would you be deemed to have possession without having actual and there's two ways it's either through construct find beyond a reasonable doubt that defendant or one who actions he was legally responsible for was armed with a firearm when he committed the three either a b or c within the first first degree murder statute and so i mean under the language the plain language here in this instance with respect to the enhancement is very clear that the legislature wanted the accountable defendant to be included in the fifteen year provision when one considers not only the presumption that of course legislatures new accountability principles in drafting but also when one considers the legislatures deliberate use utilization of the work was the shooter of the trigger man in this case charged with personally discharging a firearm and sentenced to an additional twenty years do you know i actually don't know but in connection with your explanation that goes with justice fitzgerald a moment ago you're going to cater that the legislature could have intended the fifteen year add on to apply only in the situation where per the account the person was charged which included while armed with a firearm but wanted a more serious add on for the first two actually did the far so and that could that that could happen case where the trigger man is charged with the offense which under the fifteen year enhanced content dealt with the interpretation of what is considered while armed with a firearm under constructive possession principles and the court said for constructive possession principles to be considered armed with a firearm one needed immediate access to the firearm what the county clerk did not say is that accountability principles could not be deemed sufficient to be to qualify as while armed with a firearm  similar language is used in the armed violence statute says that and there's an appellate court case that you cite where a person can be accountable for committing or in violence while armed with a dangerous weapon are there any  is that the only citation that you have or serious supreme court case holding  first of all the state brings up saying star and i believe that this statute at issue is very different from the one sangster here we have definitions definitions were passed along side the statute in the same public act public act ninety one four zero four the legislature clearly intended that this applies solely to the person carrying the firearm on or about his or her person also the consecutive sentencing scheme which was at issue in saying star is a free standing statue it's not part of a comprehensive sam sentencing scheme like we have right here the language in the firearm handsome and is also very specific and precise also the application of accountability to the consecutive sentences statute in sangster doesn't result in this absurd result doesn't result in this hybrid sort of situation it was all or nothing here if you construe the first tier to apply through accountability it becomes this messy convoluted statute where the first year become sort of a catch all provision hammering everyone that was involved an offense where a firearm was present and that's not what the language of the statute says secondly the question on in condon was whether defendant was otherwise on and under the under the violence law where guns were found throughout his house and he wasn't personally carrying anything and this the common law definition of otherwise armed which is used in the armed violence statute and the statute here was held not to refer to accountability hold specifically to refer to constructive possession the state's reading of the statute also changes the nature of the statute kind of from this clear this clear three cut three tier progression with the increase culpability to this this hybrid situation again where the personally language sort of precludes you know it's just the person carrying the gun and then the fifteen year kind of catches everyone else up however it's very rational that the legislature may have cited to want to hire mandatory minimum for those actually carrying the weapon as opposed to those who are just found guilty through accountability it would allow greater flexibility in sentencing accountable defendants within the underlying offense itself as for the codefendant the actual shooter in this case i'm not exactly positive what he received but i'm fairly certain that he did not receive the fifteen he received one of the higher tier add ons to his sentence for first degree murder in this case but that for that reason i ask that you vacate my client