you may call the second case i'm going to be focusing on the first issue in my brief this morning mr avery pled guilty to one count of first degree murder in exchange for an agreed upon sentence of thirty three years however the indictment as well as the factual basis for this plea revealed that decision was shot and that's how he was killed therefore the minimum sentence in this case was forty five years twenty years for murder and at least twenty five years for the use of a firearm this render the the negotiated sentence illegal and therefore  this case is on point with the illinois supreme court decision and people versus white where the defendant pled guilty to to murder in exchange for a twenty eight year illegal sentence and then in his case the minimum sentence was thirty five years in white white  comes after the fact that after the sentencing in this case the current i'm sorry your honor this is a current white occurs in after the sentencing right in this case right the decision in white it occurs after the sentencing however this the sentence in this case is still voided because from the moment that the legislature passed the firearm add on statute the minimum sentence was forty five years and your question i this whose yes by another just that could occur we don't believe that would be a legal option in this case because he would not there isn't there is no way to do that with allowing him having to have the benefit of his bargain of the plea bargain the only option here is to have  primarily because if you go back and look at other cases that were decided before waited a week before that my client was convicted going all the way back to under decision of void sentence is illegal and can be attached at any time and this is clearly void sense because the i'm not i don't completely remember exactly what the relief was in those cases but in this case because the sentence was void the only relief is to send it back to allow him to plead anew or withdraw his supreme court case when a guilty plea isn't just by a boy condition the defendant has the right to withdraw that plea and illinois law dictates that avoid sentence can be attacked any time so  remedy for failure failed management this is a case where the sentence was foid and again this case isn't even like donaldson which state cites that there was a way in donaldson to remain just from the sentencing but also give the defendant the benefit is  restructured so he wouldn't do any more than the aggregate maximum he pled guilty to in exchange for in this case that's not possible the only way to correct what happened here is to allow the defense of the opportunity to  the morning your honour's again my name is sheila o'grady assistance assistant state's attorney appearing on behalf of the people in this case the inquiry does not begin and end with whether to defend sentence was void there are additional concerns that this court should address and should look to the equitable concerns that are arisen given than unique factual basis of this plea and what the defendant did the defendant stood idly by the public defender was on the record saying that they he and the defendant both understood that the minimum was forty five years and they approached the state and asked if there was any way around that anything that they could do and so the defendant said idly by and accepted his sentence of thirty three years while he did file a motion to withdraw his plea his motion was that he didn't understand that it was going to that he was not entitled to serve it fifty percent of the time five years passed between that motion withdraw the plea and defendant now coming and saying wait a minute i should be able to undo everything and start over all over again ten years have passed since underlying murder in this case the state's ability to prosecute this case at this point has been severely compromised the ability of witnesses to testify and their ability to competently testify at this point has been compromised this court should also consider the prejudice to the state that would result from allowing this defendant to stand idly by except illegally lenient sentence and later ten years later now that the ability to prosecute has been compromised to undo everything to come back and undo his plea although the state to not amend the factual indictment the facts in the indictment in this case white didn't exist yet the state did not know that that was the procedure that would be suggested and white that they would have to amend the indictment the understanding prior to white was that the fireman hanson was subject to a printed principles and that it had to be separately plaid and proven in this case the state prior to white thought they had the fireman hanson did not necessarily have to apply and the defendant did not challenge it he accepted the knowingly knowingly accepted an illegally lenient sentence furthermore a defendant is now challenging this in a collateral proceeding in a post conviction proceeding defendant has not shown that he has suffered any injury the concurring opinion in donaldson speaks directly to this that in a two fourteen zero one proceeding in a post conviction proceeding there is nothing unjust unfair or unconscionable about receiving a sentence less than the minimum there's simply no harm to the defendant here he has received a windfall he has received a sentence less than the minimum he has received thirty three years instead of forty five the defendant is not prejudiced by continuing to have a sentence of thirty three years and if it is enjoying huge benefit however the state would be unfairly prejudiced by having to undo this go back and find witnesses whose ability to remember the underlying events and their ability to competently testify has been compromised at this point there is no case in illinois directly addressing this however i would  propose that your honour's look to cases in other jurisdictions that have addressed this exact problem of a void sentence being challenged in a collateral proceeding and roads versus texas and graves first the state of mississippi both those courts found that although the defendants in those later there's a particularly instructive sentence in graves versus state that states the defendant cannot stand when he's hit an illegal sentence which is more favorable than what the legal sense would have been reaped the benefits of that illegal sentence and later claimed precious as a result they're out of that speaks directly to the unique factual basis that happened in this case defendant knew he was getting the illegal sentence didn't say anything didn't challenge it and now here slater now that our ability to prosecute has been compromised now says that he wants to be able couple of points your honour's first of all the defendant did challenge his sentence not just in the p c he raised the son direct appeal he lost wrongly because the sentence was void as far as other states decisions  different is a different concept in mississippi here there's prejudice isn't the concern here the defendant getting reaping a windfall it doesn't matter when the sentence is void the sentence is void in the state makes the argument other cases it seems that here they want their cake and eat it too  do you agree that the sentence was swayed at the time it was entered based on the statutes that were in existence at the time yes at the time the statute there's no question about that no there is greed that the defendant raises a question on appeal on his initial direct appeal he didn't raise the question and so he