please the court today i would like to focus on issue two that that briscoe was denied his right to an impartial judge and issue for that briscoe was denied his rake his right to counsel of choice but i'll be happy to speak on any of the other issues as well at a pretrial hearing the judge actively prompted the prosecution to amend the charging instrument in order to share what it termed a deficiency and charge presto with a class x offense these actions especially in light of the prosecutor statement judge i don't have this as a class x when the went beyond those of a neutral arbiter rather than simply clarifying the judge was actually tell instructing the prosecution as to how to or quest however the prosecutor interrupted the judge saying judge i don't have this as a class x at that point at after the prosecutor had said that the judge referred to the charging instrument saw that they had used a different offense to enhance the of trent hence the charge and then instructed the prosecutor as to how they could share what it term used in its words as a deficiency in the charging and shipment of misunderstandings what would make this possible well it's it's not clear what happened and for it to conference or what gave briscoe the idea that he was facing a class sex offense that conference is not on the record there's no indication that the state said in that for  conference we're charging you with a class x in fact what the record shows is that the state was operating under the understanding that they had charged with a class two offense not a class  correct however the issue here is not whether the prosecution would have subsequent the issue here is that the prosecutor and the charging instrument were proceeding with a class two offense the prosecutor would not have chart would not have to amended the class the charging instrument to indicate a class x to properly charge a class sex offense with out the court's intervention with the words clerk prosecution did this after it after the court had spoken had it referred to the indictment as a deficient charging instrument using the words deficiency and telling the press implying that the prosecution needed to cure this deficiency  he did and i would argue that that that the judge's statements in these contexts referring to the charging interest as a diff as a deficient charging instrument and telling briscoe that he if he didn't accept the plea that he could then be class x the judge at the court says it's listing the different priors that rezko has and says this is charged as a class two felony looking at the charging instrument and seeing that it's charged as a class two felony so at the very least we don't know where briscoe or anyone thought that they had the understanding of the class sex felony briscoe's attorney asked my client doesn't understand why his class acts but he could have gotten that idea from from defense counsel saying from another from another source with  three to five or six to thirty  and that's why i think you have to overcome that the judge in reality is being sympathetic to the defendant by saying hey wake up you guys if you let this go down the yeah they're  prosecutors it's within the prosecutor's distressed discretion how to charge an offense this amendment was not sufficient or this indictment was not deficient in any way but when the judge use the terminology cure the deficiency the prosecutor would then could have was responding to this and saying well we need to use these this other prior to enhance the offense that think the the state is allow is given the discretion to charge it as they wish if the state chose that they were going to charge this as a class two offense and perceive it that way and the judge then saw that it was a cross to a fence and following that known to the prosecutor noting judge we don't we don't have the i don't have this as a class x offense that shows that the prosecutor was not intending to charge it as a cost x offense but as a class two offen e in addition to acting as a prosecutor the court also denied brisket his right to counsel of choice as raised an issue for on the first court date after a trial attorney irving fetterman appeared in court having recently been hired by briscoe's family to represent him on post trial proceedings however the court the judge gave him an impossible time frame of two weeks to investigate obtain interview transcripts and supplement the new the motion the post trial motions the court himself recognize the impossibility of this time frame saying stating that especially the need for a transcript on his part that's not going to be possible drew is appearance and the original public defender then filed a boilerplate motion for a new trial the same day in which she did not even raise her earlier objection to the amendment of the indictment it's important to note that this is not a situation where an attorney was not present or that briscoe was simply asking for a time to locate and hire an attorney because of his dissatisfaction but rather that his family had followed through on his dissatisfaction and taken the expense and time to for another judge to take over a case a the caseload for a retiring judge significantly this is not a delay tactic or you can childress that was not a guys or an impediment to thwart the administration of justice but rather this was briscoe's family following through on his earlier expressed complaints about his attorney hiring that attorney that a trying in court ready willing and able to represent briscoe on his post trial motions please the court again on john walters represented people state of illinois with respect to the second issue an issue i would say that the i would submit that the issues forfeited this this whole air allegedly there is a result answered the defend it's question i would submit to you in a in a large large scale thinking about this broadly that is a matter of public policy we're dealing with the context of four of two admonitions what we want is exactly what happened in this case we want the trial judge to thoroughly explain to the defendant everything that's on the table whether it's in was it spelled out in the in the charging instrument or not so that the defendant is fully aware of his rights so he can make a knowing and intelligent waiver of his rights i would submit to you that that is exactly the reason that for it to rule for two was promulgated in the very first place is that it is set up to effectuate united states supreme court policy illinois state supreme court policy that defendants be fully  possibly be error in a trial court fully admonishing the defining the case with respect to the fourth issue unless there's any any for the questions on that with respect to the fourth issue i submit to you that the defendant especially the opening brief started out from a phase process and that was that that a defendant has an absolute right to counsel of choice the leading case on this issue was was announced by the united states supreme court in the year two thousand and six and that is united states and in that case the supreme court was very careful to say that this was not an absolute right that this that this right to counsel of choice was carefully circumscribed in several important respects counter against the against the right to counsel of choice if this were the words load it was and that's a that's a factor that think that the court had to consider because it was especially compelling in this case is that this making wayne these these competing interests and as i say what's especially compelling here is not only that but the trial court was going to become unavailable in four weeks with retirement but the truck was still going to be sitting up and up to including those four weeks but also there's another factor here and that defense counsel was not going to be fully available during those four weeks the case couldn't be continued for say three weeks because defense counsel three weeks was needed to have surgery but the transcript certainly was going to be available in two weeks so whether it would be available in three weeks or four weeks i my recollection the record is not clear is taller if it would have been ready in say three or four as opposed to two clearly that correctly guys the two weeks was going to be too short a time frame to get the transcript in that case but the fact of matter is that these are all these are all considerations that the trial court had to take into account head to head the way the the the things that you're bringing up but also had to weigh the fact that this this court was the finder of fact in this case not just the presiding judge but the finder of fact in the defense counsel was not going to be available but these were these were all considerations that went into the balance in terms of weighing what was appropriate to do here i would point out that defense counsel himself didn't protest in this case defense counsel withdrew his appearance he recognized the the that this was not going to be a workable feasible situation for him but but again this is ultimately this is a question of of weighing all these all these factors that went in in what i'm submitting to you is that defendants argument the flaw defend its argument is that defendant didn't recognize that this is a balancing interests that the demands of the courts counter certainly a factor that that has to be considered and that in in this particular situation under these particular facts the trial court didn't abuse its discretion now i would s determination that there's ineffective assistance of counsel if there's at least an arguable claim of effective since the counsel the new counsel has to be appointed but why because imbedded in the six and then it isn't just a right to counsel of choice there's also the right to effective assistance o prevent that situate that conflict of interest situation from happening that's a completely different situation than what we had here this is not a tranquil situation so those interests that go in into weighing the competing interests here they're not a factor in weighing in this particular case because the crank will determination i would agree if this is a if this is a crank the situation then those interests outweigh the needs of the courts calender so i would say i would agree in that discretion well look i don't believe that there was any showing that the defendant delayed in this case i think the in particular i think this was happening about thirty days or so after after judgment had been enter on the on the finding of guilty but that's not that's not the be all and end all i would point out that in the it's a factor but i would point out for instance in the huey case that i cited there was no indication there that that defendant had to lay the case it was simply a situation where defense counsel was not going to be available in a timely matter to litigate the case and therefore they've chosen counsel like that big counsel that the it was preferred by the defendant was not allowed to be substituted in that case the defendant had to choose a different counsel in that in their case it's united states versus you it's a it's a fish circuit case on counsel choice so the point is these are all factors these are all things that the trial court had to w honor's is that the truck court did not abuse its discretion the defendant has not made a case for showing that the truck part of uses discretion simply because the defendant didn't necessarily cause a delay in this case there were other compelling no question oh mom but that's why i cited all the different examples in the law form for the importance of in for the preference in our law for the for the judge who decided the case to rule on post judge for whatever reason rather be that or retirement or disability but his death wasn't it wasn't as if he had just died there were for weeks there were for weeks that were going to continue one where he could still have locate witnesses and those representations are those are all those are all part of that part of the tapestry of this case all things that had to be considered by the trial court on but as i said the one the one piece of that i want you to focus on is with respect to the sentencing statute the first the first part of that sentencing statute says that if the judge is sitting in that courtroom if the judge is sitting on the bench then the judge shall impose sentence it's a mandatory no it does go on those that there's a dependent clause it's a conditional clause it's a that's as if the judge is no longer sitting then then the case the senate should be opposed by different judge but the first part of that that statutory clause is mandatory and the judge was sitting in this case in was going to be continuing to sitting it isn't is it in a case where he did say he had died there was no possibility of continuing the case for four more weeks in this case there was at least the possibility of continuing the case for four more weeks but again defense counsel wasn't going to be available within that within that time frame if they know the questions that people state of illinois respectfully request that this court the firm defend its conviction with respect to issue to the states statement that the here the judge the tenor of here that the judge was simply admonishing the briscoe about the potential sentence he could be facing if you look to the tenor  and the ones that he was using in describing the indictment in describing that the indictment as a deficient indictment that the state needed to cure this deficiency and then using this  into rejecting the offer heavily implying that if he didn't accept this offer he was going to face a more a larger sentence with regards to issue for the key here is that it was not just it was not sader men who caused this delay but it was the actions of the judge and the judge's desire that caused this delay the judge set the timeframe of two weeks noting himself that it would be impossible for  men to be ready in two weeks for them in surgery here is surgery is not at issue here it's irrelevant to what happened here because it was the judge trying to take care of his own schedule that led to this timeframe it was the judge giving the timeframe that fame and saying i can only do i will be unavailable after two weeks finally with regards to the case law of the state side of the hearing his and then saying that the his case that this is something that's allowed it's important in the huge case the court pointed out that counsel himself created the conflict it was not the judge putting a restriction on counsel but counsel saying i will not be ready unless because i'm representing another client in another trial going in the other case law those cases do not address situations where the judge was retiring and leaving the bench and the defendant's right to counsel is implicated as the situation is here