everyone today is our second day of oral arguments over twelfth two thousand and twelve first case on the call the docket is agenda number six case number one one two eight nine zero people versus english  having been carried out in subsequent cases a brief factual background in november of one thousand nine hundred five scouting with was indicted for knowing murder murder based on aggravated battery of a child and then the predicate charge of aggravated battery of a child he was tried in february and march of one thousand nine hundred six it prior to the jury being instructed in this case the state opted to dismiss count one of the charges which was the knowing murder count and proceed only on felony murder and aggravated battery of a child specifically with the intent of avoiding the court instructing the jury on the possibility of involuntary manslaughter the jury returned a verdict of guilty of felony murder and aggravated battery of a child the defendant took a direct appeal in the end his conviction was affirmed he later found a post conviction petition and that's what we're here on today it's kind of been a long and tortured path getting here this petition denial finding that the claim was forfeited because it hadn't been raised on direct appeal and alternatively that counsel was not ineffective on direct appeal for not raising the claim because the claim essentially was not available so we're here today with defendant's conviction a felony murder is improper as a matter of law under this court's decisions and people versus morgan powell and the following the cases following because aggravated battery of a child was an improper predicate here what's the test for determining whether to predicate a proper predicate or not this court has starting with its decision and morgan said we look at whether or not the act the predicate felony was inherent in a rose from the killing and also then whether there was an independent phoniest purpose and that has been followed in pelt reaffirmed in davis the test and then most recently reaffirmed by this court in davis and in two thousand and ten as what the court will look to to determine whether the predicate family was proper so looking at the factual context of the case where the state dismissal knowing murder charge proceeded to specifically to avoid involuntary manslaughter instructions and proceeded only on felony murder based on aggravated battery of a child our position is that that was an improper and the defendant's conviction is improper as a matter of law what the court looked at in evaluating whether or not the predicate was inherent in the rising from typically is was the same evidence used to prove both in this case that was where the same acts charge for both in this case it was they were the state argue the same things in its closing argument the the theory of this case was that blunt force trauma and fixation together combined to cause a death in this case and those were also the acts charged as the aggravated battery of a child as for the polonius purpose again we look to the defendant's conduct to determine what the purpose was what his purpose was there was no independent phoniest purpose here this is the kind of case this court has repeatedly expressed concern about where the same acts in the same evidence are being used to prove both the predicate and the killing it's difficult to separate an independent  the mortgage the morgan decision in the cases that have followed specifically have seemed concerned with both eliminating the possibility of a second degree or less for mental state side and then eliminating the need for the state to prove unknowing or intentional murder that's what happened in this case for those reasons we submit that morgan impulse control and should result in a reversal of the felony murder conviction on the state has argued procedural obstacles to being able to present this claim tracking what the  initially finding that the claim was forfeited but then also arguing and as the appellate court found that counsel on direct appeal was not in effective for not raising the claim and i submit the bet's piquantly inconsistent those findings and that position for a claim to be forfeited and it has to be available to the parties to be able to be raised you forfeit a claim by not not raising something that could have been raised but wasn't in this case then if the claim is forfeited and i submit morgan provided a new substantive statement of rights not there wasn't necessarily a forfeiture here because this is a shift in a substantive narrowing of the particular criminal statute to prevent the  bully the change in in the raw is what we would submit excuses the failure to raise it on direct appeal excuses any possible change the law comes up i mean people are raising that claim  wasn't purposes of the ineffective assistance argument this is why it's a little bit i think confusing or inconsistent the appellate court's ruling because on the one hand the court saying it's available and on the other hand saying it's not available this is a shift it's a new substance of statement of the law of felony murder in terms of inherent in arising from any independent for me it's purpose requirements if it is forfeited though if this court finds it was forfeited because it wasn't raised on direct appeal counsel was ineffective for not raising it counsel on direct appeal should have recognized that this claim was available and should have pursued it it was objective leah unreasonable for counsel not to present this claim you know until valuate ineffective assistance we look at court counsel here hasn't disputed that we should be able to continue arguing that position here so the issue should have been raised about direct appeal counsel was ineffective and as you noted the issue similar issues were being raised even though they were being rejected and actually after this case was briefed in the appellate court before this case was decided in the appellate court on direct appeal the fourth district issued its decision in morgan so coun decision a painting consistency which does the defendant the ability to obtain relief fund what is a meritorious claim and a claim that this court should be concerned about that there are grave doubts about by ability of this conviction under this jurisprudence and that's where fundamental fairness concerns come into play and we talked about it in the brief in the final subsection of the argument dealing with the procedural part issues in this case the appellate court's decision is statute didn't have the authority to enter that judgment and this court should take action and intervene to both address that pain and consists in the inconsistency scuse me in the part court's decision and to grant the relief in this case constitutional underpinnings to this court's decision in morgan and the cases that have followed because they're the court expressly stated it's one of the concerns that case was that the state could use felony murder charges to avoid its bur response to the state's claim about the constitutional basis and this is the first time that claim has been raised this case has been proceeding all along i say over these some twelve ten or twelve years as a constitutional claim but the void also address that if a claim is void it can be raised in any court at any time i include in collateral proceedings and finally we address the ineffective assistance of counsel on direct appeal on astronomers are well aware that's also a claim of constitutional basis only please the court counsel i'm assistant attorney general and o'connell on behalf of the people we've given the court three grounds on which to affirm the first being that petitioners claim is forfeited the second that it relies on a statutory rather than i constitutional basis and the third being that it is actually meritless under morgan and related cases i'd like to start first with the forfeiture argument the forfeiture argument is fundamental to the fact that this is a post conviction preceding post conviction proceeding is only intended to address areas that could not have been raised on direct appeal here we have a claim that was based entirely on the trial record this is traditionally a claim that this court has repeatedly recognized as the type of claim that needs to be raised on direct appeal it doesn't matter that the law at the time was not as conducive to the claim as it is today the question is whether it's based on the record and there very liberal standard for whether it was available at the time of the direct appeal was cultural before you know you for not raising you know your honor so there's a standard for whether it was available is a liberal standard the standard for whether counsel is actually constitutionally ineffective for failing to raise a claim is a very stringent standard to meet those who are in a way that can go really well i think that's fundamental though to the fact th is a post conviction proceeding it is an implicit in the fact that the conviction has to be deemed final at a certain point and the prisoner cannot wait for another prisoner to bring a similar claim and eventually have a core issue favorable decision and then at that point jump up in maybe get a second or third bite at the apple that's not the intention of the post conviction act so it is the case that there can be a claim that's available and therefore forfeited but appellate counsel is not ineffective for failing to raise it and in fact this this happens in a number of context reverend there's been a sea change in the law for example when a president was issued or on bats and was issued courts have considered similar issues as to was the claim available well yes that was i mean technically counsel could raise say a bad thing claim but w counsel ineffective for failing to predict that bets and would come out no because counsel is not expected to anticipate changes to the it is that if i could say one out of one hundred attorneys can conceive of the claim that means it was available if however you wish to show that the counsel was ineffective you would have to show that the majority of those one hundred attorneys would have raised the claim so there is a there is an area here where claims are being precluded however that is part of part and parcel of this being a post conviction proceeding to give another example of this type of argument being made over and over again and in fact the petitioner has failed to cite a single case in which an appellate counsel was found in affective for failing to develop a new argument and try to trying to change the law it's simply the case that an attorney to be constitutionally effective does not have to predict all possible changes that could occur down the line and in fact it to grant relief as petitioner is framing it this quote would have to find that appellate counsel is deficient whenever a claim is available but is not raise and that's clearly not the standard here i mean whether council was deficient depends on what the state of the law was at the time what claims council actually raised compared to the claims that council didn't raise the standard is is much more stringent than just the fact that a claim was available even if the law supports it at the time of counsel doesn't have to raise every single claim depends on counsel's strategic decisions at the time of the appeal excused on this basis he did not really argue in his opening brief that it should have been and although in a reply brief in a footnote he does know that there is a fundamental fairness issue he still does not give this court appropriate standard for what that is or apply it to the facts here fundamental fairness doesn't it it's a very specific test is there cause and prejudice is the way that this court has interpreted that and as i think justice common noted there is no cause here there was nothing that was actually preventing this petitioner from raising his claim at the time of his direct looking at those other states none of them have deemed this to be a constitutional doctrine several states have developed a similar limitation however they have done so as a matter of statutory construction of their own murder statutes and in fact this court's reasoning and work and reflects that it was also interpreted in the murder statute and in fact was attempting to avoid an absurd result which would be that in any case the prosecution could charge  balancing murder based on some sort of an aggravated battery and that would preclude the defendant from raising perhaps a meritorious mitigating factor that would reduce it to second degree murder so this court was in effect construing the felony murder provision and light of the other provisions of the statu and in fact one the one primary case cited by justice common was tennessee case called state versus ghodsee which is sixty southwest fifty nine in tennessee which kind of sets forth the way other states have have done this and concludes as they did that this is a statutory rather than a constitutional issue now the petitioner has noted that this was motivated by the court's concern that the state would be avoiding its burden and there are a couple responses to that the first is that it's not the case that where a doctrine is developed in sort of based on a concern you know a constitutional concern it doesn't more it doesn't morph what is really a statutory claim into a constitutional claim just because a statutory claim was somehow an acted to say effect a constitutional right and that most clearly in this court's case of people versus mitchell where the general assembly had passed a statute as to when a competency hearing was required when there was evidence of psychiatric medications being use believe this was based on a constitutional concern however the court held that whether a specific hearing was held pursuant to that statute was in fact a statutory claim and therefore could not provide a basis for post conviction relief so it's not simply a case that because there is a related constitutional concern that necessarily means that the doctrine itself is constitutionally ba and also the petitioner has claimed that his judgment is void petitioner is actually incorrect here as this quote has has set for a voidness is actually a very limited concept renders the judgment voidable rather than void so this is not the type of claim that can properly be brought in a collateral proceeding simply by saying that it renders the judgment void and finally i'll just briefly address the merits in terms of this court's independent slowness purpose doctrine the course most recent pronouncement on this was in davidson and that the standards set forth in that case are what should be applied here davidson set forth that there were two two issues that the court would consider when adjudicate in this type of a claim the first is whether there was an independent felonious purpose and the second is that the court will actually look at the facts of the case to make sure that the court's concerned about making this sort of end run around the second degree murder provisions that that was not occurring under the facts of the case and here we have the independent  purpose as discussed it was the fact that the defendant tended to cause grievous bodily harm here rather than to actually kill his young victim and furthermore there is simply no meritorious argument that the defendant could help can be interpreted in a way that makes it consistent with this court's jurisprudence i think it can be interpreted in a way similar to morgan and that morgan said if it's the mother should be prosecuted as intentional clearly under th evidence then it's improper to charge it as felony murder pelt seems to have been concerned that that murder should have been prosecuted as a knowing murder under that alternative provision instead of felony murder under those facts however if the court disagrees with that interpretation and based on its reading of pelt feels constrained to find that there was no independent flown his purpose here then pelt is reaching a result that is actually contrary to davison and on the court has subsequently kind of distance itself from the more problematic language that suggests that the court is applying sort of same act type of analysis and davis and in fact expressed the express rejected that so to the extent that powell is read to have adopted that position it would be inconsistent with davison and should be over right the focus is the intent and it and it makes sense to say that you shouldn't charge felony murder where the intent was actually an admittedly to kill the victim because then you're sort of you're avoiding what really should be your burden in that case but the felony murder provision is intended whenever the intent is to commit a forcible felony if in the course of committing that felony a death results and that's magnified in a felony murder and that was the legislature's determination that any time a forcible felony result in death it should be charged as murder under that provision his or jurisprudence currently that the the state can charge an aggravated battery and in fact that's actually in the felony murder statute and the definition of forcible felony that aggravated battery resulting in grievous harm is is a proper predicate felony knowing murder count looking at what the instructions were argued an issue arguing this issue would only have tied into that would only have fit in with the issue that was presented on direct appeal and then in knowing count the dismissal that shouldn't have precluded the involuntary manslaughter instruction to arguing that the count is the one that should have been proceeded on instead would only these issues would only have strengthened each other instead we have a defendant who's left without a means of obtaining a remedy if we stick with the appellate court's analysis in this case counsel argues that interests and finality of convictions say that's ok that might be true in the case of the conviction is proper what we have here is a conviction it couldn't be had today under the law the substantive reach of murder does not cover this case and this is not the type of case like a plan b and facts and that were cited by counsel dealing with procedural matters in the court dealing with proof beyond a reasonable doubt of a sentencing element dealing with jury selection and this is the substantive elements of the case does this conviction stand in this court should have grave doubts about the case where a constitutional concern isn't necessarily or an underpinning isn't necessarily concern converted into a constitutional issue where there is a statute about involved addressing the situation again though that was a procedural matter what we're talking about here is a substantive decision in law and it should be applied to this case under this this case should be made to to conform with this questionnaire sprints and in more go very can it can be the basis i'm sorry of a felony murder charge in this court in issuing its decision in morgan you know firm the appellate court in morgan and in that appellate court decision there were some examples cited of when it would still be proper aggravated battery particularly in the jenkins case that come before the appellate court's decision and morgan where an aggravated battery involved a defendant fighting with a police officer he knew the officer to be armed during the struggle and the officer's gun goes off and it actually kills the second officer who's at the scene the same in aggravated discharge cases that have been upheld since this court's decisions and morgan  aggravated discharge would seem to be involved in a charge of murder based on a shooting that predicate is proper in that circumstance in this case we have one defendant one victim one series of acts that are all charged as a whole separating out that intent trying to parse it out between the predicate felony and the killing isn't possible this court has recognized that where the same acts on the same evidence are used to prove both the predicate and killing it is difficult and i would submit impossible to apportion out that inten i think that independent film has purpose ties in with that i don't think it's just look to the x because again in the situation where say the jenkins case where you have a defendant struggling with an officer that struggle leads to the gun being discharged that's all want it gets the defendant's one act and individual is kell another individual is killed what i'm saying is this court has said in a court the appellate courts have said we look at the factual context of each case in this case how we pull this out from it seems to fit squarely within this court's jurisprudence aggravated battery but chad was an improper predicate in this case and for that reason this court should intervene and reverse the defendant's conviction that