if we can if there's a lot of questions obviously we're giving you more the try to stay within the parameters of the all right morning honors again my name is nicole jones and i represent a pawn in this matter mr oscar chris that today intend to confine my remarks to mr grisettes first issue the medina issue and i'm happy to answer any questions that you may have about his hattrick issue this case presents and narrow set of factual circumstances that has not been present in a published case since people the medina was issued in two thousand fixed by the supreme court here mr gross that was charged with aggravated robbery and convicted of a lesser included offense of that of less than three hundred dollars a person after defense counsel successfully tendered a lesser included offense instruction on that offense however at no time at the trial court inquire of defense counsel whether he added of the appropriate penalties nor did the trial court inquire of mr gryce that whether he agreed with the tender we neither of these inquiries are made we cannot assume based on assignment record that mr her sac agreed to the tender included instruction tendered that's medina court just distinguish between the tender of a lesser included offense instruction where you should make inquiry as to the defendant and defense counsel and where no lesser included instruction because our king created a system here that basically under your theory he's you free trial judge doesn't ask the question defendant goes forward a offense instruction has been compared to a guilty plea multiple times by the supreme court and in a guilty plea that onus is on the trial court to give make in monish minutes and give these increase so or the stipulation of the evidence is sufficient to convict and that's what the supreme court has said the tender of the lesser included instruction is analogous to both of those instances the guilty  defense disagree with any conviction but if it is a conviction it could just as easily be rich well sure because there are certain things that could be proved all conclude that if it had not been given he adds or he would have been convicted on the other charge in this case is a greater or lesser isn't the sexily lesser he was given the opportunity for a lesser finding where we can agree that he would be but have been convicted of a greater offense because the jury had it before that and on these facts did not find sufficient evidence to convict him of the greater offense but if they hadn't had the option if they had had the option there's always  say for sure what they get back the jury would have done if there hadn't been a lesser included offense given that that option should have been before mr christie that and the burden was on that on the state to prove the greater affects now here they are very found th didn't answer my question is this you know we've got my dean or was it brock smith was saying one thing about the greater exposure but is he really being exposed to more or is he being exposed to less he's being exposed to more he's being exposed to a lesser if he was convicted would not that i'm a greater he would have got more tanked and this he's getting less time right that's true is getting less sites i muster it is a lesser included a fact however he is exposing himself to another offense that was not charged that there was no indication that the state was going to give this lesser included offense instruction and that he would have been exposed to this charge and not exposed to conviction on this lesser offense and there was no indication that the court was going to give this instruction so in this way he's exposed to this other criminal  if the jury does not find sufficient evidence which it clearly didn't to convict him of the aggravated robbery they can acquit him and that possibly could happen here had mr gross that been properly and by the penalties sad that of less than three hundred dollars from a person is a misdemeanor it's not it's a class three felony and mr gross that was extended based on his prior conviction here here's my question if you read away with directly of the the e says with a lesser included offense instruction is tendered we believe that the trial court should conduct an inquiry of defense counsel in defendant's presence to determine whether counsel has advised defendant the supreme court's opinion without more presumably the defense attorney would say having done so yes i have told them the potential penalties and  then the defendant you agree with the tender yes and this doesn't solve the issue of if what you just said it was the case that is that the defense attorney misapprehended the because the offense class she would have assessed the situation worse complete agreement with and and complete conduct as this court decision says would have resulted in probably a worse asked the question then defense counsel would have had an opportunity to realize his mistake that this was a different fact there are many different classes of that i just ask of you if you advise your client of the occurred based on their work well perhaps he had sad have you had by some of the penalties associated with eft of less than three hundred dollars from a person because you could remind him at sentencing that this was from a person which was differen fact less than three hundred dollars not from a person well perhaps a kid sad did you advise your client of the potential penalties maybe he didn't advice is kind of the penalties and that would have forced him to go back to the statute book and look and see what the what the instruction rise that he was tendering the supreme court has made it pretty clear that the difference between not tendering an instruction and tendering instruction is that we can assume based on the silence when he does not tender the instruction that he agrees not to tender but when the defendant was convicted of a greater offense here mr christie that was convicted of the lesser offense acquitted of the greater which is what happened in proximity and so there because he couldn't say that th fed had made the final determination to tender this instruction it was outright reversal because you can't retry on the greater offense because he's been acquitted so this is double jeopardy he cannot be retried and as for re exacerbate the situation that i discussed in my first question to you it's it's a jackpot situation for the defense counsel were a judge doesn't make an inquiry and it may even be  ineffective assistance of counsel under your theory for the defense counsel to tell the judge that you should make an inquiry into those circumstances because under your proposal what would happen is if there is no inquiry and the defendant is convicted  try him on the greater offense and have failed to meet the burden so that's why this seems like a jackpot situation but if you look at proximate have that full opportunity and here the only reason why he's been found guilty of that lesser is because he's been exposed to it by defense counsel and he's done knowingly conceded this extra criminal liability but taking judge smith's question by if you just went to trial i'm the greater without any acquiescence by the defense counsel at all then the acquittal on the greater would end the whole matter but when the defense counsel introduces the concept of the lesser included offense which may give the jury the opportunity to reach a compromise verdict that wouldn't otherwise exist have defense counsel not submitted that instruction and ship you would create a situation where the defendant who under some circumstances may be guilty of both or may be guilty of the lesser would be totally acquitted just because of the actions of the defense counsel in submitting an instruction and remaining silent when the judge omits that ask the questions in the movie isn't that the case i mean we would create that situation but we can't expect to find it just right that he doesn't know he has we can't expect here that there's a role that he doesn't we don't know one way or the other yet we don't know whether he knows he has that right or not it's true but case here they have the full opportunity to prove their case and this is just like a guilty plea if defense counsel sits silently and says hey we're going to plead guilty fair and the defendant doesn't say anything we don't accept that guilty roads and roll well and statement don't agree with you but really saying that you are borderline pushing the this type of an action is pushing one of the five there being a judge giving the admonishment back to the other side meaning it's not one hundred judge should have to give well so basically they're saying that you are creating a situation where we the supreme court in the future are going to have to change this rule that's what raul and the roads are saying and stagnant very actively is opposed to this whole theory but roads is not actually analogous actually roads there's no to sit there's no  it's the apis it but they're saying they act in a fact just what justice epstein said you're creating a scenario where there's not going to be true justice i think in rhodes they're not they're not saying that they're saying that if he is silent when there is no lesser included offense instruction tendered we can as i'm sorry i'm not familiar with smith and the case you cited and shelley and i position to each other but neither of them have been overrule smith basically stands for the proposition that if it is not tendered no harm no foul but the right it mattes the difference here actually here we have a tender of the raster included offense instruction all day cited by the state other than calderon there's no tender and so this is why this is so on point but day supreme court was discussing in medina when we have a tender of a lesser included offense instruction he's exposed this this other minutes those should be the decision of the attorney no it should be a decision i have the defendant however he should have these inquiries made so that he does he makes this decision knowingly and voluntarily just as he read with a guilty plea just as he would when a stipulation is entered and there is a statement so what's the perfect scenario for a judge to do here advised the defendant of the potential penalties and there stack it to defense counsel do you want to submit this lesser included instruction and once those things are made we don't have any air to complain of because he has had the  we can assume that his counsel has properly admonished him now if you have this situation where on the facts he comes up and he says this is a misdemeanor and he should get less than one year then maybe you have another issue that isn't fully developed on the factual basis this is a he said she said situation and the jury found him guilty of the lesser and acquitted him of the greater showing that the guilt the jury likely found the facts to be close here secondly this falls under does fall under the second prong of plane error as well in closing because there's nothing on the record that indicates that mr gore sat knowingly and voluntarily made the ultimate decision to tender this lesser included offense instruction now i think it's a better take that the very issue in medina out which council rightly recognise the issue that keeps was plaguing defendants was attorneys saying that they would make the ultimate decision not to tender and nothing defense a cowboy like tactic thereby depriving a defendant perhaps of being convicted of something lesser that was the very issue briefed and i argued and presented before the illinois supreme court in medina it was not dispositive i thought the additional language with respect to when there is a tender wasn't dispositive to the decision in any way in so far as you look at the language itself the reason i say that it wasn't mandatory is because they used the prophylactic word shall and nothing nothing in their language gives the force of a command it's all directory they use you don't see the word shall you don't see the word duty you don't see the word requirement you don't see the word mandatory and you don't hear anything about failure or a remedy and for those reasons i suggest it's virus free and i have position which would certainly if you would review this then for an abuse of discretion particularly did did judge sullivan abused her discretion when she did not follow that directive but it was a directive and it's a good idea most of the time attorney and it would be along the lines of a smith situation where the defendant i doesn't testify and maybe the prosecutor is chomping at the bit because they would like to cross examine this the fam don't want this lesser included and now they're going to turn around and look at this defendant and say well are you sure you're admonish mr kriz it who by the way we are not dealing with any defendant when we look at the record in its entirety on this case this is a fact it was certain himself from the minute he walks in the court room asking for discovery filing us a j motions concerned about the convenience of his schedule when the cases were continued he asked for a later date so rule the right to a jury trial the attorney under precis which is cited by medina the attorney can waive his client's right to a jury trial rather defendant sits there and remain silent and that's generally a valid for ok look at the fundamental rights plead guilty ok the defendant still must preserve that you could absolutely waive an admonishment in at the end of the day you still have to establish that real justice earlier in the case with a different lawyer whatever the decision that was against my wishes i let it be known to him that those were against my wishes he still chose what to do i wish to speak that i want you to know this judge this was a defendant who did speak up this was a defend to contact the public defenders at supervisor and at the end of the day he got a lawyer because that's he made sure every step of the way he told judge sullivan i am working with him and meeting with him and discussing this with him every step of the you know how do any of us know what conversation was head with the defender oscar grizz it or whether or not he knew he did have to for a two conferences indicating he was in substantial agreement to plead guilty to a mandatory class  charge hey when it the court said no you're not getting out on bond after he was convicted of the lesser the class a misdemeanor this is a class three felony the defendant  he specifically asked if i want to pass the case to talk to the defendant the jury gave me what i asked for but i just want to talk to him with regards to that issue and after speaking to the defendant i stepped aside there was no amendment that posts try a motion so why would we under the circumstances and facts of this same you can't elevate the decision to tender and the same it's not exactly the same as a decision to plead guilty otherwise i was it might well if you use the supreme court well and they make that mention in dicta and they don't use negatory language we are dealing with an unusual scenario where they do not discuss a remedy in this would be actually elevating it to a situation where defendant was admonished or real justice was it's right otherwise he can't be reconciled with go ca where you know the question of whether i'm going to even ask to tender whether or not you actually get it if the court can suicide tender over the defense of jackson if i as a prosecutor can say well i didn't charge you with it to begin with at this record not to tally the circumstances and see that this defendant was not the pride of due process it is an additional outside our entire body of latin jurisprudence surrounding to process has never led to extraordinary remedy that would only be acceptable in the situation so how do we right around this when i say right around we have to take into consideration the attorney might misinformed as client one into how do we write around and i obviously don't fully agree with my two fellow justices that this is mandatory i think it is not mandatory which is among a few others that that one of which i gave it is among our odds and last night that just screwed every plaintiff attorney our defense attorney here it so i am saying i'm not one hundred percent and believe that the supreme court always gives the ultimate proper decision it's quite often they only give half a decision well what i was sick just an axis circumstances of this case right opinion saying it touch sullivan did not abuse her we know that but rick i'm saying is just because they advise something doesn't mean that you need to do it as long as you do not abuse your discretion and interfere with the attorney client relationship and i think the facts and circumstances of this record indicates that it would be the medina one would you know says that these inquiries should be given that it is discretionary rather than mandatory medina states campbell which says that that in march this must be given that the defend it must not only the right to make those decisions but also some responsibility for their consequences meaning he should have spoken up if we are to take your position and also maybe that says decisions even if normally the fans can be challenged as being the result of in effect that it advice on your precisely the same standards as any decision he long to counsel is true the second idea weakens the assumption that season belongs to the defendant and perhaps moves this one of the five defendant decisions closer to being a finely drawn is the choice is to allow the state to present the case by stipulation that if and when the instruction was tendered but when the instruction was not tendered which is what happened in rhodes he did not he had the obligation to say i write something tendered that's the difference in medina i understand that rhodes is trying to attack box next which is the one thousand nine hundred four case that says that this belongs to the defendant and that this decision is exclusive to the defendant but it's not attacking specifically the medina decision  for the ride like to respond to the state's the state's argument that mr mr grisettes prior contact with the judicial system would allow him to know that he had the this waiver medina rocksmith the cases that talk about tendering a lesser included offense instruction say this is like a guilty plea not like a jury waiver and regina goes on to discuss what we do with all of these defendant's rights and says this is lik accountable for now not not making an objection when the court admonished him several times to stay quiet and my counsel talk so in conclusion for all the reasons stated here and in our briefs we ask interesting case i'm hoping somehow one or the other i may try to force this case to go  because i don't think any of us if there's this much argument it means there's no human hamady of thought which tells me that medina didn't answer the question that was raised