final case on the call this morning is number one two three zero five two people people versus rios solace or agenda number four mr golf which when you are ready you may perc surcharge mystery of salazar was not prejudiced because the amount of that surcharge excessive him out of sequence deficiency which asks lever counsels the challenge of exploits that to buy lesions was unreasonable in your prevailing professional norms and it wasn't his case because counsel had an obligation to seek least burdensome suns possible for mr riehl cells are and that included doing so by challenging unlawful fines if we if we determine it's he does that mean we don't need to reach the reach another problem with the de minimus position is that it fills to appreciate that even small amounts of money so just fifty seven dollars are not to minimus to indigent defendants even one dollar may be important to someone who is in your hours value a dollar means different things to different people what may be trivial to one person may not be consequently using the minimus exception would be incredibly difficult if not impossible you just don't know where to draw the line is it do you violate the professional standards there's an attorney violate the professional standards  i would say that a trial attorney would because a trial attorney has the obligation to seek the least burdensome sons possible in the poet's earnest as it is has a different standard they don't have according to the that's that's possible we don't we don't know it's possible correct it's possible that the court could have done that we don't know but what we do know is had counsel stayed silent and not raised the ex post facto issue he could be putting his client in a position where that surcharge is later better off because again it was a fact and i suppose that the fine the state argues that mr riehl cells are by requesting that his constitutional violations be remedied is requesting when full that is not what is happening i think the court force i thank you please the court opposing counsel my name is nick monger of the office the attorney general i represent the people of the state of illinois at the heart of this case there are three assessments there's the judicial and the victims i'm sorry the violent the victims of violence one more time and there's the violent crime victim assistance fine  favor was nearly three times the amount of the alleged errors against defendant he cannot show either prong of strickland's test he cannot show that trial counsel acted deficient only because there's a reasonable reasonable trial strategy that explains counsel's actions he didn't object to the small errors that hurt defendant because if he did so he'd likely bring about the correction of the bigger error that helped  that not only just that we're not remember this other fine but the state doesn't proceed at a later time with the corrector i think it's a point important at this stage to remember that there's a difference between the first prong and the second prong of strickland the second prong the prejudiced prong is the one that deals with what was likely probable to happen that's not what you have to show when you're showing that something was reasonable trial strategy it's not that something was going to happen what we're looking at and the counsel calls it speculation in his brief it's really a matter of presumption this court has been directed through strickland to presume the trial counsel was acting affect affectively it's to presume that if there's a reasonable strategy that can be found that that is what trial counsel was doing as long as it's not record and i would say this is basically the defining type of nature of what trial strategy would be trial strategy means accepting some sort of concession or loss against your defendant in the hope that something worse on that sheet there are two small errors that maybe he can object to and have a result in this favor one of them we can see could the v c be a fine but in doing so it was very likely that either the state or the court was going be made aware of this much larger error that was benefiting defendant any rational trial attorney seeing this would have at least considered that the risk of alerting the state or the court was not worth trying to get the fifty seven dollars and defend its favor in some form and know that it was likely that that's what would have happened first defendants not complaining that was point that there was one ever in the system she he was going to be saying there were t sheet and whenever you find multiple errors there's a likelihood there's going to be more if the court were the state would probably say if there's two mistakes we better check to make sure there aren't more there it also doesn't help that these are not simple crimes the crimes at heart took place in two thousand and ten and the prosecution didn't happen for almost five years later because of that that meant some of the statutes that were in effect at the time of sentencing weren't going to have been in effect at the time of the crime and if there are a couple of those like the court or the state if they were being prudent wouldn't realize the same error could have arisen from those unusual circumstances and decided that they should go back and check the entire assessment we also know that trial counsel thinking this is a risk was reasonable because this is exactly what happens on appeal appellate counsel had a different strategy rather than ignoring the error they call the error to the court's attention and the court recognized that there was a larger error in defend its favor this shows that not only was it possible that  the defendant whether it's here said that counsel doesn't object to because they're worried that the state will bring more witnesses and more evidence that's harmful to and whether it's other evidence here every evidentiary the matters which end up along those lines and because of that it was reasonable trial strategy not to object but for similar reasons it shows that there was no prejudice because had counsel objected to this more errors he likely would drawn attention to the bigger errors we saw that happen in the appellate court what would have happened in the end is that the court would have said sure those fifty seven dollars should not be assessed against you here's the hundred seventy dollars that should be assessed against you and if and it ends up financially worse off the fence counsel made a point of arguing that defendants care about every dollar and i would agree but what they probably don't care about is what that assessment is call this is an instance where if you're looking at a defendant what they're going to care about at the end of the day is was their attorney able to or was there a charity attorney able to minimize the financial burden the defendants not going to care about which finer feed that is they're going to care about you i pay less or do i pay more there's another side of the precious argument that has to be addressed and that's the question of whether this was legitimate stricklin prejudice in most cases it's true it is a purely outcome determinative test we ask was counsel's actions reasonably likely to have affected the outcome to have changed but the united states supreme court has said there are some cases in the language and stricklin itself acknowledges there are cases where that's not the only test there is a question of whether what you're seeking regardless of your outcome at trial or sentencing or it a different prejudice in whiteside the defendant argued that his counsel's ineffective because he didn't allow him to put on perjured testimony the united states supreme court again said no while there's there might be prejudice in the sense of yes the jury might have believed you yes you might have been acquitted that's not the prejudice that we're going to allow to count you can't use mistakes of law you can't use errors of law or the misuse of law to show that there was strictly prejudice and this is a case that falls along those lines because when we look at the practical effect of defendants argument he's saying he's not getting the full winfall of the air  hundred seventy dollars defendant was ultimately assessed in this case fifteen hundred and eighty seven dollars if you take defendant's arguments as true for the sake of argument and add back the money should have been charge and then to the mandatory surcharge defendant actually should have been charged seventeen hundred dollars in assessment with the criminal search by giving back the fifty seven dollars at this point it would just be acknowledging that gee court made one hundred seventy dollars there in your favor we're sorry you didn't get the whole amount of that because using common sense using a knowledge of what how the court system works we know that it's possible yes the state could be seeking mending could seek mandamus to correct this but the state hasn't the state has no plans to i've said and that's just not the way the state tends to work in these cases state is not after a conviction going to go back to every victory and make sure that every little fine was collected that could have been collected the state is not going to years later spend the money in the time on an appeal to get less than two hundred dollars there are some cases which the state has used remedies to try and try and change the sentencing of defendant which defendants cited in their brief but they're not cases like this one there are cases where there was an actual sentencing issue in the term of years which was at issue which is a very different situation than two hundred less than two hundred dollars there was one case that dealt with fines but that was  this is just not in there large enough for the state to expend the energy to trying rocked to do so would in the long run probably outweigh the benefits they'd be receiving you agree with i would say could be wrong if this were a case where the hundred seventy dollars surcharge did not apply a case where looking at the record you cannot find a reasonable trial strategy for not objecting that would be a case where strickland would apply if it were just the one error and let's say the v c v a because that's the one that's not there's no argument about if there had only been that error and that was the only question yes that would probably s you can't use this fairness inquiry in every case and one case directly remarked upon by counsel was william speedy warden of nicholas berg which was a virginia case and it's important to in my death penalty face of the trial if he had done so i likely would have convinced at least one juror i should not get the death penalty and that would be enough to show prejudice the virginia state state court in that aspect that even if you're true even if you can show that you could have convinced one juror we were looked at the entire thing and it wasn't an unfair hearing it wasn't an unfair situation so that's just not going to be enough story that's no argument in line with what happened in the lead opinion column that's basically a de minimus argument that's not the argument we're making we're saying that the prejudice seeking to be recouped is a matter of and there by the court it's hoping that they get the luck of the lawless decision maker who did not decide to charge it on one hundred seventy dollars finally i'd like to address the judicial facilities because in that case s judicial facilities fee is a fee counsel could not have been deficient for failing to object in order for defendant had been prejudiced because as a fee it would not have been it would not have affected post fac ex post facto principles and therefore any objection would have been on words and how they describe it because in the end it's a matter of statutory interpretation in this case the legislature explicitly termed the judicial silly city a fee not only that they said what was being compensated it's a fee for the judicial soon to use and that in and of itself is enough to show that's what the legislature intended that it's just be but even if it doesn't stop there looking to be other factors we can see that this is meant to compensate compensate the state for the use of the judicial facilities during defendant's prosecution first when looking to the legislative history it is repeatedly referred to by the sponsors of the bill as a user fee this is a fee put in place on the people who use the court house to compensate for use of the act or house that's because as anyone can tell when you use a building particularly public buildings with many people it's going to depreciate there's going to be wear and tear that needs to be compensated and some another factor that shows that this is a come compensatory fee is who's actually being charged this it's all civil litigants it's all convicted criminal defendants and it's those defendants where grants violations and traffic violations things of that nature who don't plead guilty and actually end up coming to court so the people who don't have to pay are the people who choose to plead guilty and stay home they're not using the judicial facilities and therefore they don't have to pay the compensatory judicial facilities fee finally when you look at where the money's going it also shows that this is compensatory the money is going towards new judicial facilities because the old ones need to be replaced since the money is so clearly tied to the matter being compensated it's easy to see if  reimburses the state or the county for a cost of prosecuting the defendant this season is imposed for purposes of generating revenue to build a new courthouse in will county and the only point i would make on that is yet no no cases as occurred in this new courthouse so it just does not meet the test additionally the fee of the fines only imposed on defendants w imposed on civil litigants doesn't mean that it can't be fine it could be a tax on civil  and it would be great if they did that but for continuing to do that and if the prosecutor defense counsel and the trial court all does their job in this case he wouldn't be here and i think we should be encouraging to do their job i can't tell you how many times i i've never read a record and actually seen the litigants to see you assess it just doesn't happen outside of a public defender  surcharge a few thinking to himself well the odds of the state pursuing this are high then your client's not going to get hurt if you try to get your client what he's d i think is important to note that if this court were to accept the states are and say that in circumstances like this where you have illegal fines imposed but you've also have another fine that's mats where the hasn't been impose that's reasonable strategy to do that for counsel just to stay silent because you don't want to tip off the court or the prosecutor about this the collective fine defendants are going to have a remedy in the future to get that illegal fox to get the legal find remedies if counsels conduct is consider reste you're not going to be able to defend it's not going to be able to file a p c because the underlying claim would have been waive didn't raise it and you can't you can't follow it to fourteen a one because you're not raising facts over that weren't brought up before  posed certainly couldn't demonstrate to chip due diligence because you didn't raise it for there's no remedy for defendant to get this money if counsel stay silent and then this do i have an ethical obligation to say but by the way you did miss this one hundred seventy five in that would have been so we're just standing silent i mean does that go into  reasonableness the fact that he has to debate this ethical i mean i think he certainly has its health client but again i reiterate my prior position that you don't have court unless the court asks we thank you for your arguments today your excuse