going to focus my arguments morning on issue one but i'd be happy to answer any questions the court may have on the other issue conflicting evidence is presented at trial regarding the required elements of a class sex home invasion charge and in particular where the defendant has pled not guilty and then testified in his own defense at trial denying that required central panel handed the state's home invasion conviction on a silver platter this was not a reasonable trial strategy by any means again i say i testified he did not intend to cause an injury to miss once there was no weapon there was no testimony of any hitting on behalf of the defendant now the state argues that defense counsel here made a strategic decision to concede to the home invasion charge in an attempt to bolster i z s for the ability then to challenge the attempts between that six to thirty year range of penalties in prison versus a class to attempt criminal sexual sold or it's just there's no strategic advantage there's no possible benefits to isa and that instance for his attorney to completely grow under the bus and see the skills to a class act home invasion charge this court should apply the chronic decision here because again counsel did not subject and contested other counts attempted murders and other things specifically so he could avoid the death penalty for his fine so there is a a real tangible benefit his client won't die  concedes this guilt to the most serious offense he's charged with a class tax down and which he knows he's going to get twenty years because that's what happened the first time around but you're asking of course a fine he had defense on the second well he had a defense on the second charge but again this this is a unique case where the defense counsel is putting up a fight on a sensually it's not a meaningless charge the last restricting her ability to breathe i think the pillows over her face there was the charge somebody but for purposes of the scenario let's assume inside to pick up a hammer here this woman that's pretty clear would would your argument then be why didn't tend to do that it just it the victim's face but not injured her but because he was afraid that she was going to scream that neighbors were going to be alerted and his words she freaked out he freaked out there was no physical injuries to miss once he did not know that she had a  guilty to the home invasion and his client had had hit a victim in the head with a hammer after breaking into her trailer and then said i didn't mean to do that i did intend to do that you know that's even more of a case where your client is likely to plead guilty pled not guilty he was not guilty you made a statement to the police he testified at trial and both of those the statement and his testimony he said that when he had put the pills over the victim's face he was not intending to injure her pleads not guilty then automatically no defense attorney could ever consider anything would that be the case not concede anything you can concede some things our position in this case is you can't conce her trial to a certain that pattern denying the key elements of the offense then the defense counsel has a duty to make some kind of pro forma arguments at least as to why the evidence failed to cases are distinguishable from the cases that the state cites in those cases there's a huge benefit to conceding guilt on a lesser offense here if if counsel had conceded guilt to the attempted criminal sexual assault was after he was after he was convicted and after a stipulated bench trial the defense counsel had a pretty good idea of what was going to happen when he conceded this point skills to home invasion and it's possible the council was had some sort of misapprehension about the elements of home invasion and that case it's ineffective assistance and if he did know again this his client's own testimony did not contain all the elements of the offense and yet council got up and said that they did that's thrown his claim under the bus that's giving the state a conviction without any adversarial testing and that's the whole point of our system you're charged with an offense you can plead guilty or not when you don't plead guilty has to be an adversarial process he testified and that is counsel without his finance consent against a sixteen year old kid at the time of the offense he's already gone through one trial as attorney was ineffective and here again it's the same thing except without stipulations it's in closing argument where the where is his attorney says this statement contains all the elements of the offense of home page what's a trial back to do when a defendant's own counsel this story the whole time was i freaked she freaked out i freaked out i didn't want to scream i didn't want to get caught my eye this is a sixteen year old course that doesn't excuse anything that he did it was a serious offense but the point being all on yes and again we're not saying we win we're not saying that he would have been found not guilty beyond a reasonable doubt we don't know but that's not what we have to prove we have to show that counsel that his representation testimony is unbelievable and we're giving up on that and again i'm not sure the purpose of choice well what's the court has a choice but it but it didn't give him any real choice her in the back this is all true but he didn't say yeah i put the poor ready because i wanted to kill her i wanted to smother her or i wanted to make her pass out or i wanted to break our nose and he denied saying that he how does it matter if he hears it and i know it's a different scenario but would it be and you seem to be saying it would be equally improper in the scenario where the guy takes a hammer someone in the head with a hammer and saying oh i didn't i didn't intend that it was going to injure her well you know when you hit someone in the head of the hammer you're going to cause an injury but there is a there is an appreciable difference between putting a pillow over someone's face and  a certain way that causes them to not yell but also doesn't kill them and she didn't die there were there were no injuries so it's not outside the realm of possibility that i say a sixteen year old kid could a freaked out and just be quiet i'm leaving i'm leaving that's what he was same sheet and the victim was not injured there was no hitting he didn't do anything like that ok yes he was  now because the defense claim is focusing on on one of the aspects of fact in his confession he claims to not contain all the elements of home invasion well specifically as to the mental state explicitly contain every elements necessary to convict in the home invasion beyond a reasonable doubt however because he did admit that he placed a pillow over the victim's head and face for up to four minutes that's for through the momentary restriction of breathing proper breathing so given the trial courts and the defense counsel's knowledge of that case and in fact what's necessary to prove and belief that the trial court is going to record consent and the guard case that is not a reason to at the concession being without the defense consent is not a reason to buy the chronic exception to the prejudice requirement so here it the claim is only no choice but you can however that is easily disposed of under the best case in which the defendant's house so in that case pursued an invalid mercy killing but still the supreme court of illinois said that it a showing of prejudice and because the evidence was overwhelming he lose it and so soon simply making the claim that leaving no trace stick but to convict is not sufficient to meet a reasonable probability of a different result so there has to be some reasonable doubt but he admitted that he did this because he didn't want her to scream and by keeping her from screaming it's stopping her from breathing so it really goes it's really tied together so and the facts of this court can consider what the  upon the trial judge if you're going to put on the greater sentence and thereby comply with the stature you have to explain why i it's almost as if it seems to be honour's for all the reasons that counsel pointed out to why the twenty two year sentence was appropriate those are the same reasons why counsel was ineffective for conceding disquiets bills to home invasion was a serious offense if this court finds that counsel's actions were reasonable i'm not aware of another case where a court has said that it's ok for counsel to see this client skillz to a much more serious offense to the one that he c tested at trial especially where the defendant has testified as up on his own behalf at trial if it's ok for attorneys to do this for defense attorneys to do this to just  after he testified and said you know what i want to give up on the home invasion charge because i think the judge might find me more credible if i do that and then you can contest the temperamental sexual assault i mean that's straws there's no it's that if that's the case the defense counsel had a duty to put that on the record and again there would have been there should have been admonished months again this is a sixteen year old and that and again we can't ignore what happens when the first time the first time his attorney did a similar thing except be a stipulation instead of instance instead of giving up after closing argument during closing argument the scorching find and this particular i'm