plea because his attorney told him that if you went to trial he'd face a maximum sentence of fourteen years but if instead he decided to enter a guilty plea you'd only face a maximum of seven years now with this mr justice thought it was a great idea to enter his guilty plea but unfortunately that advice was incorrect his defense attorney made a mistake of law and for that reason it was ineffective assistance of counsel and so mr justice if the state gets convictions at trial and that this understanding of the minimum and maximum sentence is it should include discussion of any sentencing hand in hand since including extended terms and certainly there were effective because the representation was subjectively unreasonable and because it caused him prejudice now there was a reasonable because an attorney's ignorance on a point of law that's fundamental to his case combined with that attorney's failure to perform basic research on that point is a quintessential example of on reasonable performance under strickland the attorney just simply didn't research the matter he didn't look at the requirements for extended term outlook your ability and he didn't sure whether or not the prior felony was inside or outside of that ten year span which then would have allowed the state to ask for a double sentence because the attorney didn't do that he wasn't able to offer the correct advice and mr justice needed that in order to enter his guilty plea with a complete understanding of the risks that he faced and for going his right to trial now he's prejudiced mr justice is prejudice because as the illinois supreme court has addressed it brough and it's cited leave united states that he can show prejudice merely by demonstrating that there's a reasonable probability that but for counsel's errors he would have decided to go to trial that he would not have entered his guilty plea and mr justice says that here in fact he explains clearly that he has a defense worthy of consideration he raises that he has an actual innocence defen because the methamphetamine precursor sudafed was found in his girlfriend's purse not on his person so for these reasons because the attorneys performances on reasonable because mr justice was prejudice fact that he didn't get to go to trial he made that choice under the improper advice from his counsel we ask that you grant him a new trial whatever directed at the sentencing hearing the listening but knowing that he was well i think the issue is that this claim would not be well serviced if we look at the facts with a scalpel and only cut out the facts that support the state argument the fact that the court did mohnish at least once about extended term and the regular term that at the sentencing hearing as you say the state explained that he was not eligible but we must look at every now the state was correct yes going well it's not directly in the record that this is the date the defendant got out it was over ten years ago but all the attorneys agree in the post from jail i in the record so all we can rely on is the fact that the state said he was not extended eligible at sentencing and in post trial motion hearings we hear both the defense attorney and the state's attorney admit that they were wrong say that yeah before sentencing we told him that he was expendable extended eligible that he was facing that fourteen year sentence but we were wrong his maximum was always seven years and so they both admit that error and i think that is officers of the court and as certified records on this appeal we can address the issue now i also think that in the interests of judicial efficiency there's enough in the record to consider the issue as it stands today and requesting that new trial and that it would in service this court's docket off the table prior to execution of the plea well that was the original agreement between the state defense counsel but it was based on after that even after the prosecutor indicates that  old school so therefore it's no longer mission food it's not something the state with an attempt to those yes is yes drunk that's true but mr justice decided to plead guilty after being told that he was not going to face the risk of a maximum fourteen year sentence but certainly it was a part of the calculus of choosing to for go to trial rights and so his trial wasn't his decision to forego that trial right wasn't informed because he never really knew what the maximum was because of the ineffective advice from his counsel and so those first two arguments ask for a new trial and i think that this court can find the defense attorney was ineffective acted on reasonably cause mr  preface however if you do not agree we asked him the third argument for a new sentencing hearing because the court relied on an improper factor of the court applied a factor in aggravation that being the harm caused merely from possessing methamphetamine precursors and i believe the court relied on that in fashioning the maximum seven year sentence this is a violation of mr justice is fourteenth amendment fundamental right liberty and the the illinois supreme court has explained that when the appellate courts are unable to determine the weight given to an improper factor then the case must be remanded for sentencing because we can't determine how heavily the court relied on the factor but we know that it something it did consider because it mentioned it in sentencing we also have case all we can look to explain it it's clear the court relied when it's explicitly explained at the sentencing hearing when it's identified instead of mentioning it in passing the sentencing court talked about the harm of methamphetamine possession and dealing  use in the state of illinois at length and it's clear that the court was considering about that pervasive drug in sentencing it talked about how it's a dangerous and destructive drug how that it should be eradicated from our society and i think that the court i was responding directly to the defense attorney's argument in mitigation the court said to mr fred men he goes that that the court disagreed with mr fred mintz argument that being in possession of the drug the court then inferred that he was either going to use it themselves or sell it later in the community and so we disagreed with mr fred and the defense counsel is finding that the conduct did not cause or threaten serious harm but this was improper for the court because there's nothing in the record to show that mr justice is behavior caused any extra harm and i say extra because the legislature has already factored in the harm of possession of methamphetamine precursors this mere possession of serious fat and they've created that sentencing structure to address those concerns that's why it's a  why the sentencing ranges are so severe and so it was wrong for the court to consider the harm of mere possession without something more there's nothing in the record that shows that mr justice had any more propensity to was ready to act violently was ready to cause more harm but we don't have any facts and evidence here to to make a similar so because the legislature has already talked about the harm in the statute it's improper it's not a correct aggravating factor for the court to consider it and so if you do not grant mr justice a new trial i ask the release grant him a new sentencing hearing  consider proper factors in aggravation and mitigation and might i add in closing that i don't think that there's any doubt that the that the court was specifically considering it in aggravation and during sentencing the court did not say a our record of page one seventy three the court did mits that he was considering harm in aggravation the court says that he reviewed his notes that he reviewed the written transcript from the sentencing hearing and that it was his recollection that i believe i properly applied  excuse me your honor yes i misspoke i misspoke so he the right he said he did not review the written transcript but he did review his notes and he considered his recollection and he said i believe i properly applied the factors in aggravation here that the defendant's conduct caused or threatened serious harm and that's just a facial violation of the statute so because he clearly applied that factor in aggravation improperly i asked that if you do not  you fashion that argument it's a good argument in practice isn't that the norm that the trial were still a time of sentence and these are in fact the factors of aggravation and fine i understand that point your honor and i think it is clear the course says an aggravation i'm considering is the link when c is criminal history and deterrence and in that sentence the court does not say the harm that possession but i think that if this court looks at pages one fifty one and one fifty two of the record you will look at the dialogue that occurred between the defense attorney and the court when the defense attorney was arguing about the factor in mitigation and so that defense attorney makes that argument mitigation and the sentencing judge jumps in nearly interrupts the defendant to talk about how he disagrees with the defense attorneys argue and so we need to look at that in a russian and that disagreement really into weights because no i don't just i disagree that it's a factor in mitigation what does that mean that if it's  neutral factor that the court is considering or is it as i argue if you disagree that it's mitigation it is the inverse relied on in aggravation and although the court was perhaps not eloquent or direct in the sentencing hearing saying and in aggravation i consider the harm it's clear that that was in the court's mind it makes that clear in the record that the state asks you to ignore but it is a part of the record i think that this court can properly consider it and again i would make a judicial efficiency argument that the issue is here the record is complete before this court and this court can't grant the request of remedies under the first two arguments or under the first or of the third and with that ideal anymore time to questioning insisted on going to trial the decision to go to trial must have been a rational here in the states the minute the defendant has failed to establish that the decision to go to trial would have been rational  circumstances at the hearing on the motion to withdraw guilty plea defense counsel pacified the defendant with facing possible charges were he was being investigated these potential charges involved methamphetamines could have resulted in extended term consecutive sentences and could have been class acts felonies these charges were not brought up it's part of the  evidence under wind the charges would have been sufficient to that however under questioning by trial court defense counsel testified i can bait you know that it was in his the information available i can only say that if the state said that he was not extended term eligible and that they said we are also right i'm sorry  writing that the state was going to forego filing additional charges in return for defendants it was not you know what are we to make of that if that not memorialized to the trial court at the time of the guilty plea you know but just like follow would be then if the state decided to go ahead and charge those crimes that it said you would charge passage of time i think the defendant is out on probation if i at least interpret it the department of corrections web site correctly so i think it's very unlikely that that is happening now runner's mr justice is out on parole he's a productive member of society again but he is sitting there was that felony conviction on his record because he pled guilty and have you and correct advice from his attorney of the state says that his reliance on that  crimes and sentence ranges that he's facing and then there's an admonishment again in the guilty plea hearing on august twentieth twenty fifteen the days do not agree with each other and they do not affirmatively negate the advice that mr justice received from his attorney which makes this case different from the cases that the state cited as brief it cites williams and rat ins and those cases are just in absolute because in those cases the court very clearly negates the advice the incorrect advice from defense counsel and says i'm not subject to following anything that your attorney is telling you that didn't happen here and so i think it was reasonable that the that mr justice relied on his attorneys in correct bice and that's why it was ineffective assistance of counsel justifying a new trial now we spoke more at length about whether or not it was reasonable or rational for mr justice to want to go to trial and the state argues that it's not rational because there were all these severe charges that were dropped that were more severe classes that may have been consecutive but as you pointed out just turn or it's not in the record it's not stated at the entry of guilty plea and i think that's important i think that's why it's a we concession there was no assertion during the sentencing hearing of what the strain was on those cases and if the state have a strong case i think you can infer that they would have put that on the record memorialized the bargain and put the facts of the other conviction on the record perhaps to explain how strong that case was to indicate to agree that it seems awfully odd that if it were part of the agreement and the case were strong i think the state would have explained that so the state says on the record that mr justice is not eligible for extended term sentencing that happens on  record we know from post trial hearings that both the defense attorney and the state believe that one point that he was eligible and then realize that they were mistaken and so in the interests of judicial efficiency i think that this court can address it here and now you vote yes your honor then we come to two thousand and fifteen yes or so over a twelve year period he was sentenced to prison three or four different times no matter how quickly extendibility and so we're only looking at that case that was started in two thousand and two seconds you know three so we need to know that out date to get the answer for ourselves but i don't think you need to do that here because it can certainly be done quickly and post conviction petitions but it's just not necessary to ask mr justice to do that he served his time he's out he just wants this felony off this record or at least the chance to take it off his record by going to trial on it when it's what you really are only looking there original conviction what was the risk or yes roger so in order to what do you say i'm not sure if all what i'm saying is that for mr justice to be eligible for the extended term you would back through a period of ten years and you're only looking at class one and class two offenses so i was just responding to justice connex question about the other class three and four felony offenses that he has on his record those are eligible for the extension so he's only working it out of resident speaks in terms of and subtract them from that time yes i disagree with that well your honor you know that issue wasn't briefed it's the first i've heard of the argument and so i don't have a clear answer for you today i would i see i'm out of time and i would argue that this court can look at the assertions from defense counsel and the state on the record that says he's not eligible and that rely on tap counsel during trial court defense attorneys and prosecutors are all wrong about credit for time served by eligibility for sentences for extended term into their terms we are obliged to look at that we don't take it we don't treat it as a concession we can i suppose i understand you i understand your honor i would argue that in determining whether or not mr justice received ineffective assistance does not depend necessarily on whether he was or was not eligible both attorneys admit on their own that the advice was and correct and that's i think what raises this claim today so again we ask for a new trial under those two arguments but if you do not agree we asked for every sentence saying under the third argument thank you