arredondo to the mandatory minimum of ten years in prison after his bench trial he said quote quite frankly i think this is one time that the justice system is not doing its job properly quote and this is a case where the system broke down where it broke down the turning point of this case look at the plea bargaining sickly the legal advice that mr arredondo was given by his own attorney when he had to make a decision of whether or not to take the state police and to days we're in front of this court asking that that wrong be righted they suffer in this case is to drop the armed violence charges that mr  exchange for four years in prison that plea offer was on the table for may have twenty six feet until august the alternative was that if he was convicted the armed silent charges would result in a mandatory minimum of ten years in prison it was a six year difference and his attorney advised not to take the plea that was his testimony at the push trial hearing he told mr arredondo that he had quote a very good case a strong case i looked over the reports looked over the case law and i believed the state couldn't meet their burden i thought he would win the case in terms of what the case law was and quote those were the words of his attorney the person that he hired to devise them on the state of the law in illinois the state couldn't meet their burden and yet there's nothing in the case law to support this conjecture in this case the police encountered arredondo lying in his bed there was a loaded shotgun two or three feet from the bed leaning up against the wall the arm violence statute does not require that someone have a weapon physically on their person or they're actually using that weapon in order to be convicted of armed violence a person can be skinstad or otherwise armed if they have access to control over a weapon there is a difference between making a wrong judgment call in a case and not knowing the law and nothing in the case law even arguably supports the advice that his attorney gave him during that plea bargaining process that the state couldn't meet their burden neither the fact that he was lying down or asleep nor the fact that the gun was two to three feet from him have support in the law that he would be considered not armed it's really clear in the state of illinois that the question is not whether someone reached for the gun tried to get the gun attempted to use the gun the question is whether someone had immediate access to or timely control over the weapon the case or explains the purpose of the statute so that someone doesn't have the opportunity to make a spontaneous but nd instantaneous decision to use a weapon that right on hand and potentially kill someone without the time to reflect on that decision having a gun within your control and access and this over last with one of the most fundamental rights we have the right to effective assistance of counsel in a criminal case this stage just as at any other critical stage and so when the vast majority of these cases are being resolved through plea that's the decision that the defendant has to make that's a decision that you hire an attorney to be able to advise you on the law and if on the facts of your case courts have found defendants to be armed in cases that are much much closer than this case  for example including when the defendant was asleep being asleep is not a defense to an armed violence charge in one case the defendant was asleep with a gun underneath the bed in one case the defendant was a few feet from a gun which was underneath a love seat and a coffee table was in the way another case the defendant was sitting on a couch with a gun under the cushion and he was only sitting there because the police ordered him to sit there another case a defendant was kneeling within a foot or two of the bed child was on the bed the gun was underneath he wasn't reaching for the gun he would have had to lift the bed with the child on it in order to access the gun the small impediments are not a defense to armed violence and in all of those cases the court found the defendant was armed and in this case mr arredondo was lying on the bed possibly asleep with a loaded gun two or three feet from thought he would win in terms of what the case law was and he maintained that position all the way through not just the plea bargaining in the trial but up to the post trial proceedings he remained as the state pointed out in their response adamant that he believed his client was innocent of these charges when he was arrested mr arredondo was nineteen years old he had an attorney he had someone on his side advising him helping him saying essentially we've got this part of it meaning the arm violent that was really the only that was the only charge that was contested at trial there's a difference between having no legal argument at all and having a possible legal argument in the same sense there's a difference between having a possible legal argument and having a good legal argument is ted his attorney testified he advised him he had a very good case a strong case based on what and so even in the realm of the law where we come in front of the court every day reasonable minds can differ reasonable mine do differ this advice that he gave to his client was so far beyond the pale and beyond any objective measure both standard of reasonableness it constituted deficient performance and ineffect that is not a knowing and voluntary rejection of the plea and for it to be for the play decision to be knowing involuntary defense counsel must fully inform himself of the facts and the law for this reason his decision to reject the plea was not made knowingly or voluntarily and we're asking that this court vacate his conviction and remand the case for the state to offer in the trial court to accept the original plea offer of four years in this at the time that the state withdrew the offer no no it was not any relevance to that in terms of your announcing no and the reason for that is the point in time when his attorney needed to have been giving him advice was the point in time when the plea bargain was actually on the table the time that the plea bargain was open and so even if defense counsel didn't have all the information that advice looks completely different then i think you've got a good case i think you've got a strong case that advice is i don't have all the information i can't tell you one way or another we can try to go to the state and say look please keep us open until we've got all the discovery but that wasn't his that wasn't his advice to him and that in itself is ineffective assistance because not to come back to the state and say look we can't give you a decision because i can't give advice  client there's no information here you know he said to him i think he had a good strong case and he maintained that all the way through that final trial after that final hearing after the trial and so and so for that reason there really was no difference at the plea didn't remain on the table all the way up to the point of trial it was the point when the the plea was open that he had a right to that effect of the system based on based on  because otherwise the minimum correct and my understanding is that that is if you were to recommend that that that would be something that the state would be able to consider and would be able to to offer to the defendant  what they do are we brave other than having a new trial and we're right back to where we were yes i understand that that that that could be a risk but what we're asking this court to do is to make its decision based on the facts before it whether or not it has absolute control over what the state might do in this case you know i think you know the question you justice for cat which panic your last statement or your last that we write if we agree with you rewrite the decision in such a way that the state and i didn't understand exactly what you meant produce restate that sure i think that if this court were to recommend a restatement of that plea bargain i think that would be compelling to the state in addition to the really strongly urge that justice pegler use in his ultimate ruling on on this i think that when he when he says that saw them mr r done though not only would not only would it be served by the ten years in prison he would have even recommended probation if that had been a possibility and so i think that i think that that language coming at the end in addition if this court were to reverse this case i think that would be extremely compelling and of course the state hasn't you know has the ability to make that decision but  given the context of all of this i really do think that that would be the appropriate remedy in this case do you have any specific mortie that would allow us to recommend  something of this nature even with the statements that judge pirro made i don't but i could certainly try to supplement i would i would be more than happy to look into that  apologize i don't have that off hand assuming this case goes back or if the case goes back it probably would go back in to the same division if another judge was assigned does he or she have any any responsibility to look at judge tiger's comments or thoughts about this case i certainly you know certainly if this were to go to another judge another judge would be able to look at the sax in this cases be able to review what had occurred at the original trial what what the testimony was in the post trial motion and i was certainly hope that they would that they would look at that and consider that and they would they would have the benefit of that transcript in order to you know inform themselves of the previous hearing how long before the the actual trial was the plea offer withdrawn sure so the plea on the seat originally stated originally offered the  that defense counsel wrote explaining where he indicates this is what i said to my client this is how i made that decision i know that it was his testimony in the post  trial hearing where he said this is the advice i gave to my client and this this is what i this is essentially what i told him so it was his testimony at the post trial hearing i'm not aware that there was a written memo of what it was this is this is how i see the case which would not necessarily be unusual they're controlling but i'm just asking if they're being sure i'm not aware of that either what i do have is on the page twenty one of the record  defense counsel has said there is no agreement on the plea we're asking for a date for the trial and then the state responded that the offer was withdrawn it was far below the minimum you know saying ok the defense didn't want it it's withdrawn ok and finally during the hearing which is where most of this took place or most of the conversation about this took place is council fighting is he actually citing cases and says this is what i based my opinion on or is he just again saying looking at the records that i had available i thought it was a strong case you know let me take a look at his closing argument he did yes in in the defense and the defense is closing argument he made reference to me and i want to make sure i get this correct actually in the defense of closing argument he asked the court just to adopt his argument for directed binding and so then in the in the directive finding i do believe he went through some some case law  all right thank you but maybe my judgment and justice for can i have no other questions just this is if it's possible i did want to just bring up one other thing you had asked about the potential remedy  counsel i'm going to address three areas the status of the case when the plea was rejected and then withdrawn the evolution of the law and the mere presence of guns and drugs alone in the house is not sufficient in the facts to support the mere presence theory for the status of the case the case law says that when you consider ineffective assistance claim and accepting or rejecting a plea you consider three things whether the defendant would accept the offer whether the state would have withdrawn and whether the trial court with accept it your it's mostly the st two factors and the biggest problem is the state did in fact withdraw all the offer it was open for only about three months don't that it was withdrawn and there would be no more offers as justice brennan questioned this was well before discovery was completed there was a pending motion to suppress suppress statements and depen counsel states in its brief that in the brief that on page fourteen that the underlying felonies were proven in a great part due to the defendant's admissions together was stipulated facts and simulated facts were concerning the lab results when the plea was rejected and withdraw withdrawn there was the pending motion to suppress statements in here although it was mentioned in the police reports defense counsel did not receive a copy of the defendant's miranda waiver until february th of two thousand and seventeen that lead counsel to withdraw his motion to suppress additionally the state was providing for their photos indictment was corrected to correct the controlled substance which were the mushrooms on june th the defendant waived jury and the bench trial actually commenced on august th so it was at least and lacked legal merit because it was country to case law interpreting the armed violence statute and that why a court may be reluctant to nd guess the legal opinion of trial counsel in this case counsel was so far outside the bounds of professionalism as to be objectively unreasonable however in this case exactly this question was raised in defendant's motion for a new trial and that was by new counsel dixon that trial counsel cola that motion was denied by the trial court and that denial should not be reversed absent of use of the court's discretion in my brief i cite this at pages four and five and in the transcripts i and fifty three and two hundred and fifty four in the record paraphrasing the court's holding in the key slot that everyone cites there's issues involved and i can see why they did it and the court concluded they were defending the armed violence and i find mr koga adequately represented his client and i will deny the motion for a new trial based on ineffective assistance of  here the defendant argues that the two lines of cases regarding whether the defendant was sleeping and then also regarding immediate access to the guns the trial counsel was arguing merely being arm while possessing drugs alone in a home does not create the potential for violence and is not the kind of kind that the statute was inactive to deter to deter that's from condon and i said in my brief that page ten but that's also based on condon which held it reaches too far to impose armed violence liability whenever someone has both guns and drugs at home then criticizes and is in the reply brief that callaway was decided after this case but legal theories aren't copyrighted or patented so defense counsels can argue legal theories either before contemporaneous with or after other counsel in different venue is indeed one reason the illinois supreme court takes appeals are to resolve conflicts between the districts when the decisions are coming up with different results also courts give limited rulings saying under these particular circumstances we hold that the conduct either complies with or doesn't comply with a rule of law and a lot evolves and example is the buffer decisions that buffer decision those cases address what the appropriate scenting sentencing is for juvenile defendants it started with no death penalty for juveniles then whether  current life then it developed the militia factors then it considered whether to be the fact of life and then held that the fact of life was a forty years here defense counsel argues that these circumstances do not fit the purpose of the armed violence statute and it is the mere presence of guns and drugs that refer to i don't refer to specific sites in the record here but they are available in the defense brief pages to divide and my brief at pages mostly fourteen dollars to fifteen dollars and many of the facts are taken from defendants admissions which would have been subject to the motion to suppress which was pending when the  rejected and then withdrawn the defendant is young he was living in the basement of his parents home he said that every two to three weeks he bought one ounce of cannabis for three hundred and fifty dollars and sold it as twenty dollars a gram in order to help his parents pay the bills he didn't even have a scale to measure the cannabis but simply eyeballed it he kept the mushrooms for his personal consumption and some marijuana in a red nike shoe box on the ledge and some in a plastic container in his dresser the marijuana in a mason jar under the bed he was just holding for a friend some of the photos are available it's people's exhibits twenty five million three  and thirty nine this is not a big scale professional or a gang banger funding his gang and selling cocaine from a house two doors down from the middle school to students before and after class and during recess the court found hears that the defendant was sleeping and defendant mit's in the reply brief page five that there is conflicting testimony and whether the defendant's head was to the left near the door or the right further away and you can see that in the state's exhibit thirteen the photo and then the gun was in the corner behind the door and that is in exhibit twenty seven photo defendant had no history of violence there's absolutely no violence involved in this offense an arrest the defendant had a forty card he was a legitimate gun owner defense counsel was not unreasonable in arguing that in this case with the defendant being in the position of the gun they were just someone who had both a gun and a drugs in the house as i noted previously in the record at pages two hundred and fifty three two thousand two hundred and fifty four the trial court who was the fact finder stated in his ruling denying the motion for new trial paraphrasing in the case law that everyone cites there's issues involved and i can see why they did it and then he concluded they are defending the armed violence and i find the defense counsel adequately represented his client the trial court then denied the motion for a new trial based on ineffective assistance of counsel and that ruling was not  of discretion the state asked the defendant's conviction and sentence be affirmed do your honors have any questions for me how they would have caused mr cole to give the advice that he ga ok i think in this case someone commented you know whether the trial judge was whether it's reasonable and here what you have to look at i think or the most important part aside from that condon condon held it reaches too far to impose armed violence liability whenever someone has both guns and drugs at the home and the important part here is that the trial court who had again i agree with counsel that much of the case law was cited in the motion for directed verdict but the but the trial court who also was the fact finder and h all the facts said that you know the cases that the parties are citing you know issues are involved and i can see why they did it i don't see you know and then concludes mr they were defending the armed violence and i find mr cole adequately resented his press representatives client and denied the motion for a new trial based on ineffective assistance of counsel so given that i don't see how this court could find that you know counsel was blatantly wrong because the trial court here considered this loggins means the point of those cases the only hope a defendant has is where the defendant is running away or moving away from the god here it's very clear when when and the defendant's could not use the gun against you off here there's no question you officer at the door of the bedroom the gun is an arm's reach of the defendant the defendant's not running away or moving away from the gone i'm at a loss to understand what argument mr cola could actually make even a good faith extension of the argument as the case law existed at the time you rejected the plea i do have a follow up question and this i know discovery was not complete but i presume as it relates to discovery it was clear with what had been tendered at the time the plea was rejected where the defendant was in relation to gone in the better deaf ear i had a little bit of dispute  i mentioned that some of the photos were not yet had not been received by defense counsel so i'm not sure exactly you know from my notes what photos were outstanding and i recommend you know if you look at  i think it's thirteen it shows the defendant's room with the door butted up against the bed and then the gun is actually behind the door in the corner so if the defendant's head is to the right then he has access to the gun is blocked by the door and the council use that present and drugs you know isn't what is the focus d or what the armed violence statute was enacted for and in this case the defendant had a valid point card so he was a and there's no indication you know in this case or any nuances that indicate he actually has possession of the gun in order to defend his drug supply as i mentioned you know he's not a big time cocaine dealer he's not a gang banger you know he doesn't need to defend his supply i don't believe there's any evidence that he actually did any drug dealing you know at his own home so this is truly just a case of him exercising his right to have a gun in his home and he also says supply of minimal supply of pursuing it and simply because a strategic choice you know proved to be unsuccessful doesn't mean that was wrong to waste and in this case again i refer to the trial court's comments that you know he's heard the evidence he's listened to the parties argue the case law and he saw that there were issues involved and that he understood while why defense counsel did that so i think that it would be very hard to argue that he was so you know pay really wrong or totally unreasonable because then the trial judge has to be unreasonable too because he you know found that the defense counsel was not in the fact of the trial counsel is wrong it's something we consider and we often make decisions that should not really be a concern for us should it we should follow the law the standard of review well there there are a couple standards of review at play here and i think you know in this case since it was covered in the post trial motion that should only be reversed if you find the trial court abused its discretion and i don't think that's present here and then  you know obviously you know the trial court is kind of split in this because he does find the evidence sufficient to convict the defendant body understands you know the reasoning and the case law and in my brief and one of the things that loffler note is that with that in the kind kind continue and it is difficult to resource it and the prosecution to the precise position they occupied prior to the rejection of the plea offer so in this case i argue that you know the plea offer was rejected and then withdrawn by the state over a year before the trial you can't go back to that point you know there was continuing discovery you know the potential for the motion to suppress statements you know was withdrawn after custody there were some other things that i can't remember but you know this is a party you know along the process of the trial will as they gain more knowledge and more discovery will change as to the viability or the appeal or likelihood of either accepting a plea or offering one here that bodes well failed  t the time of the the trial you know as i said it's been over a year you can't go back there were a number of outstanding discovery issues at the time the defendant chose not to accept the plea and at the time he rejected the plea they didn't know that the state would then say d you know we're withdrawing the offer and there will be no other because defense counsel as i noted did subsequently ask for another four o two that the state simply chose at that time not to agree to that i thank you ms campbell and justice for can i have no other because again i go back to the status of the plea and i think you really need to take that into consideration you know particularly at that time  before i think you should also look to the trial court's credibility determinations in the hearing on the motion for a new trial and defense counsel disagrees with me a little on the exact words for that the trial court found mr cola to be credible and then i say that the natural inference from that is that he found defendant not to be credible in part and this is that page i believe two hundred and fifty three the trial court goes through a number of issues on which the trial mr cola testified say that the trial court also found disagreed with the defendant's claim that he told the defendant he would never step foot in jail and disagreed that he had guaranteed that the defendant would win he said i would never do that he said he gave the defendant his advice that is advice that the trial court subsequently found not to be unreasonable and that it was the bash this case well in the hair case and actually worked on that appeal when i was down in i believe it's the th district in that case i believe it was noted that the defendant could have reached through the window and gotten access to the gun so again i think it is the fence council's argument here it's the combination of factors defendant being  asleep so that he wouldn't be able to act and that the gun was behind the door if his head is away from it than the door is blocking his access even if you know it's two to three feet from the other end of the bed so again i think in this case he is going on the theory that it rights yes but the defense counsel didn't think that being mentioned in the police reports the state didn't turn over that miranda rights waiver form until well after so if that had somehow gone missing that could blow a big hole in the state's case and the defendant's admissions were you know a large part of the evidence you know even according to the defendant  and so if the defense counsel had been able to keep out those admissions it would have greatly strengthened you know his bargaining power that motion  i think in this case he was waiting to see what evidence the state was going to go and how it was going to come out i don't think you know particularly in a situation of a bench trial where you know they've had the run up for the past you know over a year that it is ineffective assistance of counsel not to make an because i think that's because in that case the state i believe the state has ceded ear in that and then i think one of the later questions or comments is that you know they don't know whether he thought improperly that that prohibited or he just thought that was a good argument to persuade a jury and i think that's what happened in this case defense counsel to save his argument for the motion on directed verdict and then he is aiming what he thinks is a argument to the trial judge and obviously you know that did have some merit because the trial judge indicated sympathy but yet he didn't find  again i refer you to la fleur where it says that that you know you can't put basically you can't put the genie back in the bottle it's very hard to get both the state and the defense back know because again you have the outstanding motion to suppress the defendant's statements he hasn't gotten all the photos the lab reports are in fact not back yet so i think there's you know a wealth of information that could have given him a you know increased or decreased bargaining power and you know unfortunately for the defendant as the evidence you know becomes more clear to both sides the defendants position is not as good as it was at that time councils comments that he heard the conflicting case law he saw that why they did it and you didn't find a defense counsel to be ineffective and he was the one that was the  and heard all the actual evidence so when i asked you to give the trial court the deference that his decision was to do and not find that that was an abuse of discretion and confirm the defendant's i'm sorry i had a little bit of trouble hearing you say that again is not right i do not recall i would have to go back i know they did have condon i think  well i apologise i was on the wrong in this case can be righted and the way to do that is to restore the parties as best as possible yes it is it's hard to put that genie back in the bottle but if you take a look at the colloquy in the record surrounding the withdrawal of the pre agreement the state was true it because it wasn't accepted by the defense that's in the record on pages twenty one and twenty two there's no indication that  the state just willy nilly withdrew it they withdrew it because the defense didn't accept it and to and to write this to go back to that period of time is to go back to the time when the when the advice needed to have been  appropriate and when while that clearly offer was on the table i would also point out that the state acknowledges you know mr ard on those not a professional criminal and frankly this is a heartbreaking case that he's selling marijuana to pay his bills the his parents it's sympathetic the problem is that's not relevant to the arms violence the arms violence is an application of the facts of the law and it's absolutely sympathetic as this case is counsel needed to have given him the advice based on the law and not advice based on the sympathetic nature of this case additionally whether or not he had a ford card has nothing to do with those it's not relevant it's not a part of the statute it's not an excuse for having that gun there as your honor pointed out in condon it was in a different room in the house callaway which was decided after this case went to trial  even said there's no reason a defendant could make a spontaneous decision to lunge for and use a weapon just beyond arm's reach and you know even that i think completely negates the from the whatever question there was about which is head was facing because the way that the bed was positioned of the room he could have easily reached that gone and so none of these more recent cases of all the state of the law and even if they did they had they weren't there for counsel to base his advice on  or for the trial court to do consider and ruling on whether he was guilty of armed violence or not finally that issue that some of this discovery wasn't complete the issue that you know he had to withdraw the motion to suppress none of that was the basis the trial counsel gave for his for the advice that he gave his client he didn't say oh i advised him because i thought that you know we were going to win on this motion to the press no he said i looked at the police reports i looked at the case law that was the basis that was the advice that he was giving his client that i don't think the state can meet its burden and further to that end in leffler the advice was wrong regarding one element of the charge he said i don't think that the state can prove intent because of the way that the he was shot below the waist this case is even more egregious than that because he's advising and i don't think the state can meet the burden not just this one part of the case not just the issue of intent but that the state can't meet a burden and so i would i guess i would leave it at that in terms of asking this court to make an attempt to put the defendant back in that position so that he can have competent as i do you think counsel given to him you know as best as possible that you know so just because the state put it the genie can be put back in the bottle to some extent and you know in the wrong that was done in this case can be righted at this point as best possible thank you