the first case is we'll call of the docket for march two thousand and eleven we actually begin with agenda number two agenda number one people versus eight was removed from the call by order of governor quinn's march nin record in this case stand in states that the parties entered into a negotiated plea turning on smarter and defendants sentence is legal the question of what the parties bargained for and what defendant actually pled guilty to and so therefore it's included by implication is if the fire is an operative fact upon conviction in the within a criminal conviction the legislative mandate only takes place with respect to the actual crime conviction to there was a meeting of the minds and on enhanced murder with a twenty to sixty range the defendant's position however is that judgment was entered on amended count one right which did include the fire in han getting back to justice carmen you're saying that that is completely contradicted by the record yes and the discussions yes you would agree it be a different case if indeed specially when we're talking about intent if if they were correct right yes  kryptonite both of these motions precisely because it was a participant b well it was aware and kept the best of the pacing intent and full well that defendant didn't have any viable arna claim because he entered into it was trying to get something out lesser degree the the offer when it was made and arguments in the motion to with trial as well the child could the people indicated that they you i like to make one thing perfectly clear at the outset of this case the appellee in this case is asking this court to apply its twenty four years of precedent as the a poet court to below was simply asking this court  firm on that basis the state has not made any argument that that person is wrongly decided or that it should be overturned on the contrary it seems all of its arguments pertain to the facts of the case and there for all go directly to that point the state are based on story common set status hearings including comments that were made several months before the actual guilty plea was entered this case but if you look at the hard facts in the record all of them indicate that he was charged and convicted of enhanced murder first if you look at the indictment itself he's charged under count one with first degree murder while armed with a firearm which is mandatory which triggers the fifteen year enhanced and as justice book pointed out under this court's fairly recent decision in people versus rodriguez second if you look at the factual basis of the plea there's much discussion in there about how a firearm was used in the fence and even what happened with the firearm after the offense occurred up until mr white was arrested with a firearm which is completely gratuitous because the elements of first degree murder had they been entering a plea to simple an enhanced first degree murder would not include any of these facts and third with respect to the commitment order that transcript the state did not make the argument at that hearing as it makes the day didn't argue that you know we were just the charge we plead to a lesser known facts in order that show did not apply that he wasn't the shooter that he pled under a theory of accountability but again is this court made clear in rodriguez that doesn't mean that the add on to some apply in fact yet on the fifteen year add on applicable in this case fully applies under a theory of accountability where somebody else is the shooter and a defendant like mr the state the state's basic response outside of the facts of the law is a parade of horribles which doesn't really reasonably follow from the premises their main argument is that it somehow restricts prosecutorial discretion but we can see that the prosecutor was in a position to reduce the charges in this case but they did not actually do so earners an affirmative step something on the record certainly more than straight comments at status or used to avoid an order problem in most cases this isn't an issue that in the example of armed robbery and regular robbery we concede that it's not necessary to amend the indictment in that case and the reason for that is because in a case of armed robbery simple robbery aggravated battery simple battery it would be plain on the record that he was convicted of the lesser included offense i mean the commitment order itself would indicate simple robbery it would indicate a simple battery while the indictment would indicate enhanced offense it would be clear from the record that there is not an  problem the difference as as the state discussed is that first degree murder is at least somewhat different than a typical greater offense lesser offense an aerial whatever it is it's called first degree the the initial problem with that first of all is that it's simply wrong there's no evidence in the record that the charges were actually reduced the main fact that the state relies on is as a comment a status several months before the actual plea was entered that the defense counsel was looking for something of a lesser degree but again this was at the outset of plea negotiations in this case and that that's a great starting point for negotiations anyone charged with first degree murder is looking for something of a lesser degree yes absolutely because it has done so in other cases other prosecutors recognizing that there is an arm a problem if you allow the original indictment language to stand particularly in this court's decisions and robberies and house child has on the record shrug that language from the indictment they've also modified the factual basis to limit it to the elements of first degree murder which doesn't require any discussion of the means of death so what's your position that they always must take some affirmative action whether it's striking language in the night or found a mentor it's different yet at the very least there has to be some clear indication on the record which we don't have here and it's a very real risk and this court's case of people versus jackson there was a much better record than there is in this case and jackson the prosecutor said clearly on the record we're not going to pursue the enhancement we believe that a way that offended energy ot ple based on that agreement that they would not this court and this court affirmed the enhanced sentence not withstanding the fact that the record was very clear that the state of plea bargain that away we have even less of a record in this case is no such statement was on the record in jackson  agree that it would have been possible for the state to negotiate that away but it's clear that what they did in that case was not enough and therefore what they did miss case which is much less clearly cannot be enough there must be some additional affirmative steps other cases cited in our brief where the charges were reduced literacy to a lesser offense trueness rumor step business is theory of the enhanced and doesn't even have to be alleged in the indictment right that's correct so you're saying even without an enhancement in the indictment there has to be some affirmative step taken saying that these enhancements are going to be ignored for purposes of a plea yes the the parties will have to make a very clear record so it's known that there's not going on a problem that you know mr white or other defendant his position is not going to have the rug pulled out from under him at a later date potentially having fifteen years added to his sentence or maybe have to take a case to trial years down the line when all of his witnesses have evaporated and be five years and this court held in rodriguez that that's a legitimate means for the legislature to deter gun crimes the state it won't point is brief it is separation of powers argument but in reality its argument doesn't give due deference to the o legislature's decision that the minimum should be thirty five years and this court's decision and rodriguez that is a relation firstly of different reason the fact that it is within the range of twenty to sixty with the trial court assuming to know the law does that give any credence to their position that the intent from the very beginning was not to include the enhanced no because we can't assume that the trial court in this case knew the law the record indicates that it did not even though the decision in this case was two years after this course this isn't in sharp revive the add ons several days after the house child decision applied this exact add on in the on the context of the court said at the motion withdraw hearing pursuant to the state's argument that sharp does not apply but it's abundantly clear in the state does not argue today that sharp those apply rodriguez how shall make it very clear that the fifteen year add on is mandatory under the circumstances are you suggesting or was that your indication of few moments ago the comment you made that if the state wished to in this case challenge the sentence as void you would do so under the facts of this phase yes absolutely in any court but it's not subject to waiver if you're a swiss ponty by a court itself even when the state doesn't raise it when the state as they argue here didn't want the extra years the court could add them by itself any court in previous cases th has applied it where the argument was raised three years after conviction based on a mandamus petition filed originally and this court this court is allowed the state to file direct appeals of criminal decisions where there's no authority to do that of course under these courts roles but because it's void because it's a jurisdictional issue this is consistent through twenty four years of case law if it's authorized as it is here it's a jurisdictional problem it's void it could go away at any time and then or she has just as suggested earlier you would be arguing with the state's argument that's correct and fact we have argued before and we lost numerous times the defense has raised similar arguments to what the state is the prosecutor in that case expressly on the record said we're reducing the charges quote we would all like to treat it as a misdemeanor and that case was a felony versus a misdemeanor we would elect to treat it as a misdemeanor eliminate the penitentiary aspect of it and this is a case  the state and there's numerous additional cases cited in our brief indicating the same thing the state can and has the power to expressly reduce the charges to avoid they are the problem in this case and if it was simply paid due deference to the twenty of the plea here the plea bargaining process is based on the intent of the parties and a meeting of minds it is not based on an original charge an indictment and it's certainly is not based on the factual basis and the people have an obligation in a factual basis to provide the child quote with a clear picture of defense criminal conduct as stated in the jackson case exactly pointing not only that it intends to but that it actually did and that defendant accepted the reduced offer that is exactly right the principals promotions to does in fact by a late the legislative mandate based on the actual crime of conviction or other conditions that the legislatures mandated like like criminal history for example then it is illegal in this particular case it's not illegal in many cases many many cases where the state has  so i don't see me as since it was decided there have been obviously many many cases in which these issues have been raised are you aware of any of those cases were they any we setting