from the state but does the state have any response to that motion well we have discussed it but we did want to check the state's position  we're at this point denying the motion pending reconsideration possibly if appropriate because this is two days before oral arguments and this case just didn't go up on appeal it's been there for some time so we cars and prejudice were not i've addressed in the petition we can decide this case they didn't say you know we've got some facts here we have to parse out they said since these issues were not addressed so they create this rule and then immediately after creating that rule set in this one specific case because the facts so clear is they didn't lead possible prejudice we are going to go ahead and rule on that participation of the state and usually it's final there so then we have the phrase in the circuit court however they go on to say that if counsel comes in as private counsel on that petition it would be slightly different because the reason they are concerned about no participation by the state is usually these petitions are pro se they're not entitled to counsel at that stage of the proceedings but there's counsel responding so it this stage of the proceedings we have you and we have still we have counsel for both sides so why can't we decide that issue oh well maybe the issue of whether cause i'm prejudiced was proven one way or the other is an issue that's actually been raised on appeal by either party in this appeal the only issue that's been raised is did the circuit work comply with the procedural actually asked questions of the defendant what is your problem and gets our brief overview of what the problem is or extensive depending upon how talkative the defendant happens to be in a review for successive post conviction the defendant is rarely there he's still sitting wherever he's sitting taylorsville woman are derby happens to be so he's not going to hear anything he's going to look at something and as a matter of a mob decide if there is a now for a success of petition don't we make those decisions almost i don't i won't use just the schmidt's garden variety language because i think that just kind of denigrates everything we do it's nothing's guard right but it is what we do every day is we make decisions if as a matter of law things are sufficient so why can't we hear to r job will see a few months i wish they had because of what they were concerned about religious leader army we wouldn't be here right now if if that's what happened it would be easily resolved but unfortunately that's should be done by the trial court according to the post missionary but there is this part of that statute that not none of the courts seem to have address and that is the appellate review which is governed by section one twenty two dash that saying that any final judgment entered upon such petition shall be reviewed in a manner pursuant to the rules of the judgment when opinion that has been entered order that has been entered on the act so we go to the supreme court rules and there is one that specifically governs appeals imposed conviction petitions and that is illinois supreme court ruled any different from will number one obviously the fact that we have a rankle procedure that is developed strictly out of his law separates it from a procedure that is governed strictly by his created and governed by stat and as your others pointed out the review is slightly different because there's an inquiry and one where you're actually presenting possibly new information to the  versus a review of the motion the supporting documentation that should be attached and the record which a court can independently do or indicated they did in bailey correct they just said for purposes of judicial economy we will review this did novo because nothing at all there are no window no indication that he's ever get there where in bailey and that's not bailey does not in fact say you're in right i was so they're not saying you can participate a little bit you can participate a lot pretty clear that this rule that they are now making is you can't participate in writing i mean i don't know how they'd know if you were standing there shaking your head but you know theoretically there should be no participation not  no so how are you coming to this de minimus position he he even brought up an issue that the court had to consider in you know in discussing this and why don't you remember how he acted that day you know it's like oh yeah i never thought there was a thing wrong with him so i mean i preceded the fact that you have that responsibility but if you know i think there are some cases that call for her human some cases that might call for ok he went too far but now then i guess unless you have anything else to say we can go back to where you were of pointed out that this is something that not saying it's run of the mill but it is an approach that is done in many circumstances and i do appreciate the obviously not directly on point but the two thousand and twelve edwards heats before the supreme court when the trial courts reviewed and actually in his innocence claim under the husband prejudiced standard which was found to be an appropriate procedure in that case the appellate court went on making lots of findings and reasoning that the supreme court then actually relied on and agreed with finding that as a matter of law under the correct standard it had not met so in the procedural error understandably we understand this is a different found is a very vague concept nobody has defined it other than saying that it extends past what is allowed by statute and what is allowed by the supreme court rules for review you say to the bailey court no it did not it's a judicial economy and because it was a matter of law so let's go back to the first one the first factor of supervisory authority something they have inappropriate use supervisory authority they have in fact so that is when that they apply something outside of that what the statute allows them to do or what the supreme court  them to do and so miss maisons argument is the actual p c authority the statute says that these things should happen in the trial court and i mean that's willing it down very simply and but the statute also does nots limits your power in reviewing it says you may review it explicitly gives you the power to review the judgment or order and we've we've considered and i'm just going to use names we've considered people versus hutchence and we've made this decision these five cases reflect a possibility that hutchinson would be applicable you go back and look at them th charlie was going to be she looked finding a structural error and the supreme court said basically do not be afraid and did not find structural area there and when there is not a structural error and bailey has said this is a structural error structural in generally there was at least one case i found that it was not necessarily a structural error generally that is reviewed for harmless error and that is the court has called paul that generally should remain with the trial court judge obviously we are aware of the trial court judge in this case ended up sitting on the scorched and was no longer a  to have the time so it was already with another child but there is no reason that to believe that they would not be able to endure independently review the motion at that point that just even then there's i suppose the state finds it absurd that the supreme court would be the only one with some sort of power independently review that especially after hearing three levels of state participation judge it but what is the situation in many cases you can find a different judge within one hundred miles and is a consideration in this situation a different judge is available across the hall does there make a difference and no your honor because that's not going to necessarily be available in every case and while it may be available in a county as large have necessarily a finite time also critical again you're looking at a specific inquiry that is made here you are looking at a very possibly extensive record should make your determination so that is also why the judicial economy bring meaning with the judge unless there is some substantial prejudice show that they are unable to make an independent decision there are still time limits on and order a judgment and treat in this case it does not limit that review now which is that the supreme court rules which allows you to either firm or reverse or modify and these are the i think i have it right now now ms mason if you have wish to reply and i apologize for the mistake before not a problem if this were in this case we were faced with the question of what is the r explicit from the supreme work as to how we should handle the remedy for these injuries but what we do have is that all we have a case where there is a similar situation where there's because you need some input from the defendant in in when you have a pretty good violation you're also getting input from the state so how do you get a review of franco hearing any there's nothing in the statute that indicates that an independent review the specifically required worse here we do know now because of what the supreme court said in bailey this very specific precise