see here eva's honorable appellate court for the nd district is now open the honorable justice roberts the mclaren presiding along with justice mary shostak and justice george burgess the cases number two hundred and nineteen seventeen people of the state of illinois just now can you hear me properly i have no problem great thank you my name is steven richardson i represent the appellant in this case richard generous as your honour's or where he was convicted of is one in which your honour's questions will be more important than my arguments or keep my initial statement free as your honour's or where this is a case in which the defendant was not to rain until be must speak inducted with this specific time it's a case of st impression but as i pointed out in my reply brief every legal principle originally originated in the case of st impression by time i cannot think of a case in my memory and i know your honors were all once troubled judges and out some more memories i would ask your honour's to think if there is a case in their memory w the arraignment was delayed for such of length of time particularly for such a length of time after a new charges add at already been filed so there is both an indictment and new charges file and this is apart from any effect on defendant speedy trial rights as your honour's are aware arraignment is a critical stage of proceedings it's the procedure where the defendant ask at counsel the st time to counsel and it's the procedure whereby he is informed of the charges and he pleads guilty or not guilty from time out of mind in english american jurisprudence this has been regarded as a very important proceeding and this is necessary precondition for trial one may argue about what a reasonable time it is i would suggest a reasonable time is no more than one hundred and twenty dollars days but no one i would suggest can argue that six hundred and thirty dollars days is a reasonable time is not that's unreasonable and as i pointed out in my brief defendant extent the prosecutor who's schedule and all now in terms of the speedy trial rights a number of points should be made st defendant agreed to continuances a court dates which holds that where there are new charges filed all previous charges are converted from agreement dates to mandates so even though defendant did agree to further court  date was helpful enough to cite the case of people versus foley which held that where there's no arraignment and a trial is held the trial is a no i would suggest in this instance where the arraignment is unreasonably delay it was unreasonably late in this case that again the trial is a nobody so with respect to the speedy trial argument it has always been held at the time between  arrest and arraignment is is under usual circumstances attributable to the state where the court and not to defend it i think that applies in  everyone agrees on that so for those reasons the a should be dismissed both on due process and speedy trial rounds i will waive any argument the nd point because i think the any questions i do the st question i have mr richards deals with your last comments when you said that the when they never requested continually of the arraignment if the next step after is by hearing is the agreement and defendant accounts or ask for additional time it really does charges or the indictment and to take care the you still harp on this six hundred and thirty days but to me now you state some of the continuances before the agreement were in fact caused by did this turn and so why wouldn't they say included in your statement of facts ok well i think i think i made clear my statement of fact and my argument that i was not contesting the calculation and that the defense counsel agreed to those continuances and under moral speedy trial principles without taking the arraignment out of the picture that would have killed any speedy trial argument the question though is are the greed continuances versus williams where as in this case the defendant agreed to it agreed to every continuance but when the state has it upon themselves he will bring new charges after the one hundred and twenty d the court held that as to the new charges every by agreement continuance was converted into a demand in humans by law and that was what and that is what we assert should and could reason was as the additional counts those did occur within the one hundred and twenty days so a a typical williams argument i don't think was available to the defendant i think that's noted in of the fact that arraignment is not mentioned i don't think is particularly is supreme court a long time ago in the case of people versus non retail that the way you measure a speedy trial ri are arrest too for from arrest no matter whether a trial date has been set or not it's never mentioned it's never meant measured against  within a certain period of time and that would impact the trial well in terms of supreme court rules or cases i think the answer is no but let me make of that on that one any circuit and this would be a good idea and in this in every other circuit have set times for arraignment none of which by the the legally held under the speedy trial act or an exporter rule who have agreed to a six hundred day continuance i think that is that would be ridiculous i mean no one good argument on speedy trial and would not make such an order sorry thank you so the fact that there was not an arraignment or you feel it was too lengthy where is the prejudice to defend well i don't think  that in an instance like this you need to show prejudice after all in a speedy trial context no prejudice need be shown if a speedy trial is violated it's violated no matter if one can say that had is to be an issue i wouldn't last that craps the court should argue supplemental briefing on the issue of prejudice armchair and i would have a number of things to say about that including structural error and other d offense that was heard by the trial court the trial court found him not credible with respect to his explanation do we not give deference to the trial court credibility finding room but it's not absolute in this particular case i would say the you know i i said frankly didn't understand the judge's reasoning it wasn't like he said i i looked at him i viewed his demeanor you see if you line what he said requested it from the jury but i don't see how one follows from the other i mean this was not a lawyer he's not skilled in legal procedure if nobody told him that he could ask the jury for the lesser included offense the same thing which is attorney that  asked judge for then you know i don't think that was a reasonable credibility on ending even that reason if the judge did something on something like you know i don't believe him and prejudice or structural error and not the need to establish prejudice and i'm curious as to why having failed to raise prejudice to the extent that you have been arguing that six hundred and thirty dollars days is unreasonable you don't explain lucia haven't done so during oral argument how this will end the defendant is asking for continuances almost at nauseum so that he can get his money out of his divorce and marital estate in order to pay for his defense counsel or for the defense of his  cause that this would constitute prejudice so when i was reading the briefs i had a difficulty with the concept that under the circumstances this delay of six hundred and thirty days when this man was asking for continuance after continuance or by agreement after my agreement because he needed the money to pay for his defense that he could claim prejudice and so the only alternative i could come up with was it must be a structural error but you don't seem to raise structural errors so why is this not forfeit error if supposedly had violates the speedy trial rule because if your client keeps asking for continuances it and as justice bridges said or implied it was on his motion if this case was continued over and over again and it is implicit in the fact that he kept asking for continuances that the need for an arraignment was it unnecessary if not extraneous to the present point so i'm having difficulty buying your argument that the delay is even error and even more so you say that the court in the state is required to oid all these cases imply and some of them actually state that the arraignment is something that it's not like it's not like a trial it's a necessary precondition to a trial which asks that happen now it may be that you know the requirement is antiquated must be was more important historically years ago all these things possible but the fact is your example in a typical tort case if the plaintiff's counsel is counseling or discussing settlement with the opposing counsel or with the insurance company who's insured the defendant if there is a delay caused by a representation is made by the defendant then the two year statute of limitations doesn't apply because there isn't a stop hold that arises or a determination that there was a waiver of the statute of limitations by the way in which the defendant was proceeding and why wouldn't that analogy apply here i'm i think it would apply here simply because the number one that's not an argument the this state is made i mean although it's an argument the court your honors and reach out to but they didn't make an argument that there was lack of prejudice they didn't make an orange respect a speedy trial that there was agreement as to as to court dates and i think i you know perhaps it nauseum stated my position is that and why it doesn't apply in the instance of the lack of rain so you know i think there's you know  i would just like to have the opportunity to write it up if that's what really wants by mistake it seemed to me that in at least to a certain extent the state argued that there was a lack of prejudice because the only prejudice that got to rise would be a violation of the speedy trial and my wrong and then a so mean that that is either rational or logical or both it's certainly not explicit because at the state the proposition that any delay prior to arraignment cannot be attributable to a defendant in each of the cases cited by defend the holding related to the fact that the defendant in those cases did not cause or contribute to the foyer the issues had nothing to do with the arraignment or whether defendant because de lay prior to being a rank a defendant is not entitled to  but even if that law was in existence similar speedy trial the concerns are whether or not their term is told when in this as in this case the defendant class or greece continu the few cases that the people found they cited in their brief the main one being people versus foley in which this court although quite a while ago found that the defendant was improperly fried when in the middle of trial they attempted to bring new charges or new indictments to correct the indictment trial after near raymond so even in mid trial the court found that the only problem was that the defendant had not been arraigned prior to trial that he was  entitled to be a range and entitled to look at what defenses he might have after that arraignment in this case defendant was advised of all of the charges the same day they were brought he receive copies of the grand jury transcripts and had counsel provided on that same day admittedly he was not arraigned it's all practice two years later however he was also arraigned approximately two years prior to trial he was able to prepare is defense and there was no harm as was all of this delayed defendant did not object until almost a year after he was  arraigned the people will not really get into the speedy trial claim specifically as defendant has pretty much acknowledged that he is not challenging the trial exclusively by defendant certainly at the very least by agree no defendant or has challenged it because there is nothing that requires that it be the arraignment to give it should arraignment have taken place earlier of course no one disputes that but is there any requirement no for this reason this court should affirm the convictions and should not grant defendant relief on this issue counsel exercised strategy in not a half or less to the extent the defendant now says well we don't have to follow or maybe we shouldn't follow the trial court's finding because he did sta reasons why there is no need for a judge to state on the record why he found that the defendant or any witness is or is not  credible i would suggest that in this case it's actually kind of strange but to the extent that maybe the defendant spoke too much at the hearing because to the extent that he claimed that he was aware that he could raise the issue of lesser that in of itself incredible as much as the rest of the information to the extent that defendant argues that the initial attorney the trial attorney either did not testify or was not called there was no reason for him to be called to the extent that this court would find that there is any further testimony that is necessary since it was outside the record counsel was flawed defendant cannot demonstrate prejudice because under the facts of this case there is no way he could have been in puddles to a lesser included instruction the people agree generally that aggravated criminal sexual abuse can be a lesser included offense of aggravated criminal sexual assault but given the way that the instant case was charge and the evidence that was presented the reason being is that in this case defendant was charged with having digitally penetrated the sex or not the victim's the giant the testimony establish that if a male sex  anatomical definitions and by the evidence presented including his own bashan must have penetrated the victim's sex organs this is not a case where depending on either the charges or the evidence presented where a victim said that she was touched down there or on the butt which could be susceptible to different interpretations in this case the only evidence question if the defendant admitted to penetrating he said well he said he rubbed the vagina and then counsel in closing said he rubbed  all of those acknowledged he touched the giant which is inside the sax or so in this case even if counsel had requested or the defense had requested the defense would not have been  titled to a lesser included instruction for these reasons we would ask that the court affirmed both all of the convictions and sentences and i am open to any question appropriate remedy would be a p c because this is all outside the record however the judge is able to make both credibility findings and determination of  strategy based on his view of the entirety of the case not just what happened it's what happened all along and could very well have determined that based on the facts of this case given all of the evidence including defendant's confession that indeed the choice of the defense and consulates ratatouille and this is a trial strategy decision  was to roll the dice and determine that the only chance was to do an all or nothing approach there is the it is important to note that while the defendant did state that he arguably wanted or would you know what he never said that he told the attorney the people are not aware of any case that dance for the proposition that an attorney must discuss the possibility of lesser included offense with his client defendant certainly didn't argue that he told his attorney he wanted a left that he did mention something along those lines that he wanted it raised in a motion for directed verdict which the judge found incredible he did not state that he wanted a   even if he had objected there is no case law there is no authority the statute doesn't say that by objecting prior to arraignment that that somehow  terminates the ability to try the defense it simply says if if they proceed to trial without being arraigned bet might be problematic that wasn't done here as i stated he did object prior to trial but he objected and practically a year after he was arraigned there was certainly no prejudice so no in the long run there is there is no right to an arraignment for say and as i said the only cases that this court found this court that the people found really foley was the closest bass in which this court stated that the law and the remedy for no rain meant was was not to vacate outright the conviction was merely to remap and for arraignment and trial that was done well in record demonstrates that that almost every appearance by defendant was vs video was via video possibly there was some problem there and maybe you know  defendant i don't know but again there certainly was no prejudice there certainly was no error structural or otherwise which mr richard so heavily upon in boyd it basically related that when new charges are filed based on the same conduct his initial charges it again it doesn't relate it anyway this if we to alignment it says that there could be a flaw or our problem if new charges are filed here it has again it doesn't relate to arraignment the question is again and boy is more speedy trial there is no speedy trial issue here again but for the arrai point in time the ben was arraigned in this day two years before trial so yes there's no question that people do not dispute that but for an arraignment a defendant cannot properly be old and new the new charge in this case with practically two months after defender was st charged by information and then was subsequently charged by indictment necessary prior to trial it is essential prior to trial in this case he was arraigned prior to trial proceed with her bottle yes your honour's i just want to address some points about the nd issue because i think the trial for blow made a huge mistake in the law apart from credibility ask for a lesser included even if his attorney disagree even if his or journey believes it's the wrong strategy it's one of the few personal rights that it offended perhaps in this particular case where defend testified that rebuttal that he was not advised that he could ask for a lesser included and therefore and he did not in fact exercise the personal right as for let's include because he didn't know the this is not a question that would be resolved by determining whether now it's a good strategy bad strategy a different strategy really doesn't matter because this is not a strickland case this is a case like a defendant's right to choose a bench versus a juror or to testify or to not testify was his right to ask for the lesser the problem was he testified without contradiction by defense counsel or anyone else that he was never apprised of that right and therefore didn't exercise it and would have exercised it and even poll so apart from the  minor i think credibility issue that the judge raised the more important thing is that the judge committed magnificent error by looking at this case through the long look wrong lens you look at it as a strickland case it should have been looked at as ross but as to prejudice or or whether a lesser included would have been given i leave that to your honor's i just remind you that only slight or some evidence is needed for the lesser convictions for child pornography so the reman on this issue whether it's a new hearing or a new trial would be limited to charges if there are no further questions i have no further argument