morning or honors i am jamie montgomery i represent robert brown may it please the court this case is not about whether or not robert brown is deserving of a life sentence under the habitable criminal act this case is about whether the sentencing court had the authority to sentence brown under the act based on the proffer made by the state this is a case about procedure it's not a case about facts by the habitual criminal acts plain language it shall not apply unless for requirements have been satisfied first that the third offense was committed after the effective date of the act second that the third offense was committed within twenty years of the conviction of the first offense all the time spent in custody does not count third that the third offense was committed after the conviction for the second offense and finally that the second offense was committed after conviction for the first essentially what the act requires is a specific sequence of events which starts with the defendant's conviction of this first qualifying offense there after followed by the commission and subsequent conviction for the second offense and then the subsequent commission and conviction for the third one of these requirements are not satisfied the act does not permit the trial court to impose a life sentence under the act as this court held in are known and weighed in most recently reiterated in people v travis woodfield a sentence that is contrary to a statutory requirement is void and may be corrected it any time here the state failed to establish the commission date of robert the state argues that the certified copies of conviction and the post sentence of the pre sentence investigation report were sufficient to establish but the second offense was committed after the defendant's conviction for his first offense but that simply is not true these documents only establish the arrest and conviction dates for those offenses now persons are often arrested around the time that they commit an offense but we know about snot always the case as evidenced by the fact that there are some statutes of limitations which allow for a later prosecution of an earlier committed offense in this case robert brown second offense was a home invasion and the law permits a prosecution for a home invasion to be commenced within three years of its commission the fact that robert brown was arrested on july twenty second one nine hundred ninety three for that offense only indicates that that offense was committed some time on or after july twenty second one nine hundred ninety or perhaps even earlier if there was some reason why the statute may have been told the problem however is that isn't whether or not robert brown you know mr brown never raised in the appellate court nor does he raise here that he doesn't fact qualify for an exception because we don't know whether or not he does because the record doesn't provide sufficient proof one way or the other due to the state's failure to to plead that defendant to know what the exact dates and of a commission and a conviction those type of offenses that under the act clearly can have it can occur over a twenty year period of time or even longer if the time is taken away for a while they're in custody that's it's just defendants don't know their histories you know it's all well and good to say a defendant should know their history but defendants don't trial attorneys will tell you that you know all public particularly public defenders will tell you that you talk to your client asked them you know what kind of priors you have and they often don't remember whether it was an armed robbery versus a robbery and they can't tell you and oftentimes you'll remember that was a worse conviction than it was or that they were charged with something they pled down to something more but they don't know what it was they just know they pled so it's not really a fair assumption to say that a defendant should know the exact dates and whether or not he qualified we were to look at these exceptions as something that had to be raised case was that he doesn't qualify because of an exception then the way of a clause would say that he can't raise it on the ground he'll the question this case though is that the state didn't make the proper showing of the of the facts necessary to sentence the defendant this way therefore the state acted outside or the court acted outside its authority in sentencing him to life and pr proven different cases sometimes there's been testimony provided i know what in one case the court was asked to take judicial notice of a prior sentencing order from another court in that circuit a certified copies of an indictment or even just copies of an indictment that alleged commission dates it's really easy to allege this information and that's why the state's failure in this case is so grievous it's not it's not information that is not at the state's fingertips all they have to do i mean they got certified copies of convictions they just need to go one step further and get one more piece of one more document that shows the date some cases even the state and its doctor e and indictment alleging that the second offense was committed even within a range of dates at that point if those dates all satisfied the requirements of the act that would be a prima facia showing or at least showing by preponderance that the defendant qualifies and at that point if the defendant did not object he would waive it under the waiver clause of the statute that's not what happened here though what happened here was the state never made any attempt to show what date he that's the first problem is that that was filed after the sentencing hearing it was not before the court when the court did sentence that if and under the act that information was not available to the court there's no indication on the record that that information was available to the court and indeed that is a statement  reconsideration was decided the court that was when the final order was signed however that document the statement of facts is certified business is i'm sorry is filed with the circuit clerk but goes to the department of corrections there's no there's no proof there's no indication that the judge even looked at that document nor would there be any reason for the judge to look at that document and in fact many times those documents are not even in the on the on the record on appeal you indicated there was nothing on the record are you saying this is not or greg this document is in the record which is somewhat of an anomaly is is not a former conviction as set forth earlier in the act is waive them and less the defendant raises that at the hearing or unless the prosecution's proof shows that an exception applies well here this  position that the legislature can say that the defendant relinquishes the right to challenge a facially illegal sentance that is not what the legislature can do it would be a separation of powers issue if the legislature that there would not be a silent record on that point the language of the statute presumes that there is that the state has made it sufficient showing of the necessary acquirements as the language that we're the day where the states duty on the part of defendant to raise that particular boy it is an affirmative duty and where that would be the problem is that that that that clause cannot apply in this situation because this isn't a situation where all of this all of the requirements were set forth the defendant can't be expected to object to something the state never alleges now the fact that the state put in some of the evidence here you know they reason the defendant wants to say i one of those exceptions applies to me a defendant has to speak up at that point or waive the issue however that's not what's going on here what's going on here is the court didn't carry out its duty in determining that all of the facts had been shown this is an illegal sentence when it's not permitted under the act because the state didn't prove that the defendant qualified moreover the fact that the language of that section itself indicates that the legislature intended to limit litigation on these questions and any interpretation of that statute which would reach which would allow the state to put in well most of the evidence but not all of it only opens the door in further litigation as this appeal aptly demonstrates here if the state had simply put in the document that allege the different the date of this defendant's commission of a second offense this case would not have happened because there would be a complete record on which to look at and say well they've made these three they've made the showings required by the act the defendant did not jack his challenges w put in their verified statement in the petition that he committed the act on some date prior to the conversion i'm sorry after the conviction of the first that would be fine but here the state has an utter failure of proof to show the requirement w know any thoughts on it well i guess there's been a pretty challenges to the eventual criminal act in the past and they were it was found to be sufficient under pressure because these are in fact prior convictions and there's the fact finder in the court finding that the defendant committed the perp committed and convicted the committed prior offenses in the sequence required  without showing all those things the statute doesn't permit the life sentence it would you know in this instance it was a class x offense now mr brown was probably eligible for extended term sentencing on this class sex offense so had the state you know here because the state didn't require it didn't prove up the requirements of the state of the statute the court didn't have the authority to impose the sentence the co only had the authority to impose perhaps an extended term classic sentence up to sixty years but the entirety of the sentence beyond sixty years is an illegal now of course the defendant is required to you know it defendants are always required to preserve areas for review but in forfeiture would apply however this is a great sentence and has and must be corrected because proper procedures were not followed if we agree with you this and it's reminded for a on the record here i don't know i so don't know how i'm not speaking that i've seen he would go back but he might face the same sensory absolutely and if the state has the information available he certainly would be could be limitations would not would have already i may not however with with that situation there's always the possibility that the statute of limitations had been told  that a similar argument was made in one of the cases in the appellate court and a poll court noted that you couldn't the state actually made that argument and the one of the lower courts and the court in that instance stated that that wasn't a you my hope would not be that the state would just pull a date out of the had no legit just to meet the requirements my hope would be that the state would do what many of the court many prosecutors have done which is just put a copy of the indictment in there which alleges the dates full on just as i understand your argument on the why the exceptions couldn't be raised is it because the exceptions apply to dates and sequence a chronology of events and the way i read your brief was that they didn't put this information in there so there's no way to make the exception argument exactly that it yes for the foregoing reasons and those presented in the defendant's brief he asked that this court reversed the decision of the appellate court taking his life sentence in remand the matter for a new sentencing hearing bice defendant from raising for the first time on appeal a claim with respect to one of the acts acts excuse me exceptions specifically defendant here claims that people did not adequately establish that his second qualifying crime was committed following the conviction for his first qualifying crime but this court should uphold the judgment of the appellate court and if in and force the forfeiture provision for various reasons first the canons of statutory propel it to do so the plane an ordinary meaning of the words and of the words of the provision indicate that it applies to defendant as do the rules that we interpret a statute so as to infer affectionate legislative intent that we  here is not void and a legitimate argument has not been raised here that that actual sentence is void on the other hand defendant's interpretation would actually leave defendant in a better position than case as indicated at as required by the statute and indeed the evidence here went much farther and for similar reasons and because every shred of evidence in this case indicates that defendant the proper interpretation of the provision the plain ordinary meaning of that provision is that defendant must raise the argument at that hearing or does forfeit the words are straight forward and there's no there's no could not have included these exceptions and then the required defendant to raise those exceptions at a certain point in other words they cannot have it include the exceptions and then held that defendant forfeited them by not raising them at the sentencing hearing but this argument proves far too much indeed in every case of forfeiture a defendant loses the right to make a claim argument it is the very essence of forfeiture that defendant loses that right to make a claim and that the result may or may not have been different if that claim had been made in a timely fashion so there is no conflict moreover the statute when read as a whole shows that  that provides a coherent process and a structure that bounces of the the interests and also the defendant's interpretation would run directly contrary to the legislative intent to somehow construe this forfeiture provision as an oblique attempt by the general assembly to weaken the rules of forfeiture just for habitual criminals in other ways to make it more easy for exception it states that this paragraph shall not apply if and there are a list a few exceptions one of them being the second crime was not committed following the conviction of the first so they have a situation very similar to here defendant raised the argument that the that the people had not sufficiently met their burden of production with respect to this chronology requirements and this quiet how the defendant had forfeited that art that they had not raised on appeal and so for f was proper so we have a similar statute without an express forfeiture provision under that under that system this court has held that defendant forfeits this precise argument and in this case  crime that must be propriety of must be proved by a beyond a reasonable doubt not to the matters at sensing hearing which have very different rules and which at which a preponderance of the evidence standard that there's no argument the defendant does not somehow fit into this exception that he doesn't fit that every requirement of which will come of that instead there's an argument that some further evidence that hasn't been introduced  and that there's no indication that any evidence such evidence exists might show that my might support an argument that the argument that the sentence was void but in this case the defendant doesn't rais forfeited his argument because the people did prefer put forward a private case the act specifically sets out what a private what a crime if a she case it is in this context it sets out the burden of production on people and the people there's much more evidence before the court there was testimony by the defendant's trial counsel that the requirements of the hits will criminal act were met that he so after after the commission the conviction of the first time if if the defendant is alleged to have been somewhere for instance at ten thirty the fact that he might be there at ten and then at eleven isn't as good evidence that as if you were there as evidence of show he was ten thirty but it certainly is evidence to that effect moreover there was the admission by post trial counsel that all the requirements of the aftermath and there was the statement by the state's attorney which directly lays out the dates the crime were committed in two separate places in one there's a there's a table in which there are three columns crime date and sentence and the date listed is clearly the date of the date that the date was the crime was committed defendant has offered no alternate explanation of what that date might refer to  transposed to six and a nine to time clear if the crime was committed on the sixteenth or the nineteenth of july one thousand nine hundred three but that is relevant to the issue here because both for a while after the conviction the first qualifying but the statute indicates that the clerk is gives a copy of the statement to the other parties in this case the clerk was supposed to give a copy to defendant that the requirements of the habitual criminal act were met and defendant was has shown no prejudice and does not even argue prejudice she argues that it's possible that some other evidence introduced  will be that he that he was prejudice and the proper avenue for such an argument would be a post conviction petition showing that  counsel so indeed if this defendant if every shred of evidence before this court is somehow wrong course refuted by some future showing of evidence that the defendant has recourse i found the post conviction for to honor it seems your honor as it seems the primary problem with this case is that the state seems to think the defendant is arguing that he qualifies for an exception under the act and that's not what the defendant is arguing defendant is arguing that his sentence is illegal that the court did not fall the proper procedure as i said in my opening comments this is a case about procedure the statute here requires that specific things be shown before a court can impose a life sentence and th one state got close it proved three out of four but that's not good enough under the act the act requires that it's void because as your honor stated in our weighed most recently in travis whitfield that  we're sentence whereas sentencing a statute has certain requirements or must be met whereas sentences imposed without statutory authority it's void and can be corrected at any time and here the statute requires that the state make the showing and when the state didn't make that showing the court had a duty to not impose the sentence under the act now the state talks a bit about legislative intent and what the legislature in tandem with this act in undoubtedly the legislature intended that our state's most heinous criminals those who can't show that they are able to be rehabilitated stay in prison for the rest of their life but as your honor stated in nathan palmer the act may only be invoked after a defendant had twice demonstrated that conviction and imprisonment do not deter him from a life of crime if we don't require the state to actually show that the defendant has committed these two offenses and has and has is unable to be deterred that legislative intent is not satisfied also your honour's the state argued the state argues that that my argument is that the what the statute conflicts my argument is not the statute conflicts i think it's actually can be read as a whole without further resort however my argument was that the appellate court's interpretation as allowing a defendant to waive it and for it for ever forfeit any claim that his sentence is illegal is that it cannot be what the legislature intended and that's not what the statute says how do you interpretation set forth in my brief and here is that you know the where the state has made the showing the defendant can waive it and that that is you know that that's what the what the statute says i don't i don't see how a defendant not being a defendant waive how a defendant being i don't see how here where the argument is that the defendant's that the court didn't follow the proper procedure and the defendant's sentence is therefore illegal i don't see how that benefits him as a habitable criminal any more so than any other defendant who was sentenced not in accordance with the law i mean take for instance if you had a defendant who committed it was convicted of a second of a class two felony and then for some unknown reason the court imposed a class sex offense on the defendant not because the defendant qualified for classic sentencing it just it just happened and no one caught it as to interpret this statute as allowing a defendant to then we have any challenge to his illegal sentence cannot be what the legislature intended and raises constitutional problems in their instance wouldn't it be possible some degree the same thing here at the time the fact is the the representation could have been made that there was an error that there was a specific date that was did not fulfill the statutory requirement and even at this point if that was the case couldn't you make that say when should we should make if indeed you had evidence that the the dates were incorrect to to to make reference to that date at the time you were claiming that voice was in fact not followed rather than simply say that the state that the judge in the in the state made an error in not determining the out at the time of the original sentence when there was no objection thereafter well i mean if there was no objection thereafter and later you discovered that in fact there was a mistake you could allege that mistake but if you if you can't do that how can you claim now in the in the court in that in this record that the sentence is void well here the mistake was that the you know the court has the duty to ensure that the state makes the fish and that th you cannot sentence this man to a life sentence because you have no proof of this fact and the judge would then say you're right and they probably would produce the proof for that fact or they would and what happened here was that what looks like a waiver situation comes by and you're saying that that that that that establishes a void sentence and i'm suggesting it might not because you may have to a little allege in fact that there is something than ninety three well c for effective assistance of counsel that's correct you mentioned before us today well i don't see how i mean what's at stake here when a defendant is facing a life term in prison without the possibility of parole demands that our courts ensure that you know take the greatest care to ensure that the state has made its proofs and the defendant is given the opportunity to object to them here the state didn't make one of its profiles and the criteria i think would justice correct under under the statutory provisions you know maybe the board at that point but not at the point where the court has jurisdiction and if the requirements are bet and can't be proven not to be met is that his question really goes to something to indicate that it's a boy so i guess i thought that by arguing at this point and by arguing the appellate court that it was void because the court hadn't made the because the court didn't have the authority to make that fine make the wrong with a sentence well yeah but there's still a thing wrong with it if indeed it was harmless in the sense that that conviction did fall on the right well i think that is the question becomes whose duty is that  pointed out you know we've got a general forfeiture law and we have a specific statutory provision that talks about waiver in the statutes well i think the specific statutory provision that talks about waiver doesn't anticipate that a defendant would waive the right to challenge the sentence as illegal i think it is intended to apply where the state has made the proper showings and the defendant is hundred four three seven five people of the state of illinois versus robert d brown is taking under advisement his agenda number