mr chief justice honorable justices powerful and may please the court i am cornelius assistant state's attorney on behalf of the people of illinois we respectfully request that this court find your pella court some distance and then produced a weapon demanding the victim's money and while it the victim described the weapon as a small black gun which he could clearly see as the defendant a victim or a close proximity and the defend kept the gun pointed at the victim's upper body for the duration of the robbery following the robbery the victim of able to get away and quickly get assistance as three plainclothes officers were within the vicinity of the robbery as the office approached me this minute they see the defendant take out the gun and wallet and throw them to the ground both are recovered and both identified by the victim but the wallet is his wallet in the weapon recover it is the weapon that the defendant used in an armed robbery the o does not a motion in a review of court to hear a late notice of appeal during the six month period after that first time period in fact the defendant found first a pro poker pro se post conviction petition two years later alleging among other things that he is counsel was ineffective for failing to file a timely notice of appeal the trial court agrees and allowed to defend it to bag date his notes of appeal on june seventeenth two thousand and supreme court rule six zero six regulates the perfection of a defendant's right to an appeal subsection b provide that and those of appeal must be found with the clerk of a circuit court within thirty days following the trial court's final order the defendant would have a remedy by failing to convict him in effect of assistance of counsel versus a case which seems to be this case where there was no direct appeal and maybe the fundamental fairness claim there versus a case such as this one in which there has been no direct appeal and if the post conviction and court can't order a direct appeal there will be no direct appeal yes no and i believe th has never been involved and even when this is due to the ineffective with of counsel as this court has held and people feel out of where there is a violation of this court's rules it is up to the lower courts to abide by and comply enforce the procedural rules i guess what i'm really arguing is arguing the question is a general a i think a general rule with respect to the fact  that if there's been a direct appeal post conviction court cannot order another appeal because they've failed their appeal regardless and they still have another remedy an ineffective assistance going but i believe there's a couple of color court opinions that are said  exception to that rule if you go before the post conviction court and say hey there hasn't even been a direct appeal here this is my one chance to get a direct appeal why i want no fundamental fairness exception in that case and  in fact in this case because there wasn't a direct appeal why well you know i don't even considerations the fundamental fairness that when you're competing interest between the defendant's right to a direct appeal and this court's clear and unambiguous rules totally denied an appeal and and being represented at p p l which i think our case law suggests is a fundamental privilege or right of the defendant what's the remedy i mean where do we go after  we say ah the rules say that he's filed this outside the rule the rule controls you you cannot you cannot order an appeal you trial you p c judge cannot order appeal what's the remedy for hearing and the result of that hearing the news that the failure to file the proper record was ineffective assistance of counsel and trial judge size you're right i'm finding that there is ineffective assistance of counsel here but this trial judge says what you would want him to say i think but i can order an appeal because that's not within my jurisdiction probably as well anyway all the time periods that i'm aware of to i think that this court supervisory authority to hell out of the proceedings like we're going to be pretty busy with using our supervisory authority if we go i mean i agree with that may be a possibility but i'm not sure that that that's practically for handling every possible case the right remedy so we're really kind of looking for you now to see if there's some other remedy that that might be comparable to the one you suggested in the case for remedy around that you know jurisdiction on to a higher court and that would be a violation of this court's rules as expressed at think what may be something that this court is considering is to allow an exception to talking about the we've all talked about where there's a direct appeal and you don't like you have an ineffective assistance of counsel p c you don't like hell that appeal turned out in the other case you have a situation where there has been no direct appeal and you know i mention these appellate court cases the case of people versus present seems to stem back to that where their quote was the trial court is not limited in its remedies by section one twenty there six instead of the trial court me enter any order that serves the purpose of the act which is to promote the concept of fundamental fairness so they cooperate the purpose of the act is being fundamental fairness and what could be more setting so whether we called an exception or in circumstances where there hasn't been a direct appeal that it would be allowed if it promotes the policies of the act which are fundamental fairness there is a difference there right i mean into the post conviction hearing at bed under fundamental fairness that allow him to defend a late night with the appeal would be allowable in certain circumstances this was still violate the court's rules in this court would in effect have to create an exception to his the sole body to excuse to exercise the discretion to sort of circumstances ultimately in this case there was no notice timely notice of appeal filed and jurisdiction is not optional and we will request  articulated the appropriate standard of review and that in the light most favorable to the prosecution could any rational trying to fact have found all these central elements of the crime however it went in did more of a denotable standard of review as if the trial court had made the determination that the dangerous weapon was dangerous as a matter of law however a review of the record indicates that the trial court was well aware that this was a question of spec as this court has held in people v skelton in the record page's wife worked fourteen through y sixteen a trial court goal to some discussion about the prevailing authorities and in the case that the question of the character of the weapon and this is on a motion for a new trial is a question of fact for the finder of fact the trial court then review the elements of the evidence that were presented that way no favor of finding that the pellet gun with dangerous and clued in the proximity of the victim to defended the ration of the robbery that the defendant kept the pellet gun pointed at the upper body of the victim for the duration of the robbery my name is rebecca levy from the office of public defender arguing on behalf of the defendant vernon writes the circuit court had jurisdiction in this case to order of the defendant receive a direct appeal there's no dispute among the parties that ross was denied his way for a defendant to file a late notice of appeal in the conviction hearing act is an entirely separate mechanism by which criminal defendants whose constitutional rights have been denied can have that right restored or have the denial of that right remedy and in this case obviously the right that ross was denied was his right to a direct appeal and the circuit court properly remedied it the denial of that right by allowing ross to have his direct appeal because ross obtained his direct appeal under the post conviction hearing act rule six zero six shouldn't apply here are our reading of morning a little different than the states in that we think that this court in more noted with approval of the procedure that the defendant thought about it in the in in more was a little different in that the defendant there had filed a notice of appeal but his attorney was ineffective for allowing the appeal to be dismissed for want of prosecution the defendant filed a motion in the appellate court asking the court to reinstate the appeal which the court denied in this court ultimately reinstated the defendant's appeal but in large this court noted that an alternate route the defendant could have taken to gain his direct appeal would have been to file a conviction petition addressed in the first  the first instance to the circuit court this court didn't prefer that remedy and more because it would have been a waste of judicial resources to have a defendant go back and file those convictions petition when this court could just reinstate his appeal but  also noted that in cases where there would need to be findings of fact made by the circuit court regarding the effectiveness of the defendant's attorney it would be preferrable for the defense of first direct appeal was denied when the attorney failed or found there are still all together to do the same thing in both cases the defendant has been completely denied his right to under a direct appeal through no fault of his own and the same remedy should be available in both situation s next be state suggestion that the defendant litigate his entire direct appeal within the circuit court is not an adequate remedy to the denial of the defendant's right to destructive also in more of this court recognize that defendants who have been denied their right to direct their no fault of their own have to receive the equivalent of a direct appeal and enforcing that the court make can't make him clear hurdles additional filing a petition before the same court who presided over his trial convicted him and sentenced him he would be he would not be receiving the benefit of an independent three judge panel overview has already lost time in getting his appeal due to his attorneys and effectiveness in requiring him to first litigate his entire appeal in the circuit court before he can appeal that decision puts him back in time even further post conviction hearing act itself doesn't preclude the circuit court remedy in this case the list of remedies included in the act is not an all inclusive list and it can't really be because the purpose of the act is to remedy the denial of defense constitutional right there's no there's not the act isn't in place isn't contemplated to denial to remedy the denial of some of some constitutional rights and not others and for closing the circuit court from allowing defendants to have a direct appeal when it or for it yet for allowing defense have a direct appeal when they were denied their right to the direct appeal through no fault of their own it goes against the purpose of the act and finally on this issue if this court does find that the circuit court did not have jurisdiction to allow the defendant to have his direct appeal we're asking that the score enter a supervisory order allowing us to have instructed there are no guns are per se dangerous weapons under the arm roger under the arm robbery statute if the only testimony in a case is that the gun that the weapon used was a gun without any further qualification that the gun was not a real  it wasn't in our public on ur b b gun the state has sufficient evidence that the weapon used was a dangerous weapon but it is as in a case like like the instant one where there's additional evidence presented at trial and in this case it was presented by the state that the gun used during the robbery was not a real gun and that it was the public on the state is required to prove that the pellet gun either could have been or was used as a dangerous weapon during or in it could have been or was used in a dangerous manner during the robbery here there isn't a dispute the gun was used in a dangerous manner wasn't fired it wasn't used as a bludgeon therefore the state was required to show that the public on could have been used in a dangerous manner and the way the state would prove this would be to present some evidence as to the material makeup of the gotten and meaning was it may have metal or wood was it heavy supports the opposite inference and that the officer who cover the gun testified that he didn't testify that there were any pellets and he just testified that it was a pellet gun the inventory report which was introduced at trial doesn't improving its case and this and can prove its case by circumstantial evidence you can't see it can rely on uncorroborated presumption or inference to prove one of the entire elements of its case because it's unconstitutional if the gun was loaded it makes it a dangerous weapon and there is no other other evidence presented which showed that the weapon could have been used in a dangerous manner the state is entirely relieved of proving one of the elements of their crime which defied that it was a polygon but i might have used the term beating on my race because i mistakenly believed that they were the same but it's something that is there a difference there is i don't know what the it's important to note that the people are not trying to deny the defendant's right to an appeal in a state we recognize that the defendant has a right to an appeal however we offer that any remedy that the post conviction hearing it would be a waste of judicial resources for could court to act where there is no jurisdiction to act then move on to the second issue under the standard of review the standard of review give full play to the role of  weigh the evidence to determine the credibility of the witnesses and to make reasonable inferences from basic facts basic facts the ultimate facts that was important when reviewing whether or not the pellet gun in this case was a dangerous weapon that we look under that wins and whether or not any rational trier of fact could have found that the pellet gun in this case was a dangerous weapon again the facts in this case are that the gun was used in a dangerous manner or we do disagree with  counsel's offer of that testimony or offer of that view of the testimony the defendant in the victim were in close proximity during the arm during the arm robbery the defendant kept the gun pointed at the upper body of the victim for the duration of the  than five feet apart and in fact as the victim put it they were close enough to smell each of those certainly a pellet from a telling gun at that close range or even if the publican have been used as a blunt it could have caused serious bodily harm now in this case there was no direct testimony that the gun was loaded inoperable however this court has never held that the state is required to prove that the gun is loaded an operable an armed robbery in fact that this court quote i finder of fact can rely on the evidence printed presented as well as common sense and there is no way we're there it certainly cannot be said that the trial judge finding a sophisticated trying to fact finding that a pellet gun used a four point five caliber pellet gun as it was described by the officer in this case was not it was a dangerous weapon it cannot be said that that finding is so improbable and so inconclusive that it would undermine the integrity in the finding that