unarmed we me because of the fact that we were unable or you were unable to get certain documentation we may have to even remember it for that alone i'm not saying it will but we'll discuss that after we hear what you have to say secondly on just one point that i in all my years have never seen a case where you hailed everybody awaiting any of those issues i'd really like to focus on one of those issues in particular and that issue is ineffective assistance of counsel and when you look at the claim of ineffective assistance of counsel in this case and put in the context of the guilty plea in the record this case is really about the failure of the justice system that led mr das to plead guilty to session of child pornography based on what was essentially flagrant and just gross  supervising them because the probation office was the first one that came up with with the solution yet or the requirement what i want to ask you about mr barney is that the state in its brief cites in discusses people your way to remove it as it were hall as an impediment to granting the relief that you're seeking church and that goes right to the heart of what i want to talk about today and that's prejudice prejudice is what's at issue here in the cour correct that in the reply brief i didn't specifically mention all i did address presently in my view presently relies on all and large extent it's the same framework so the course one big difference comes from an our supreme court that the court is absolutely correct on that but for purposes of this case the framework is what is important the question is does the framework that set out in the hall does that govern this case judge first of all people versus all has to do with a instance where the case where it was a close commission hearing back and this case is and the defendant was i think not properly advised regarding sex offender registration which but doesn't it i don't understand that where you're going i apologize for interrupting but doesn't it come up with a way to test the circumstances under which someone who says if i had known when i should have known i would not have entered a guilty plea and doesn't hall say you need to say not only that i wouldn't have undertaken a guilty says in that respect is the inquiry of whether or not the outcome would have been different rests in large part and whether or not you can establish that there is a plausible defense or any claim of actual innocence here you're saying there is a difference did not make a claim to deny state a claim that he would not have pled guilty had he been advised properly and he did not the legend any special circumstances that did not have any special circumstances that would support the conclusion that saying but look at hill as i read it all is illinois expansion upon hill by which we are bound i would have no problem with your interpretation of the hill and the lesser requirements that hill places on a defendant under these circumstances my focus in my questioning and i apologize if i haven't been clear is that if we assume that hall expands the requirements that a defendant needs to show in the illinois under these circumstances if hallie is indeed an expansion by which we are bound how do we answer that judge because hall does not say that the court must find that there is  dispositive and and i think that's important because and again i'm going back to hill and it's not to dodge ball it's just i think if you read him in conjunction there's one avenue is you put forth a plausible defense that's one avenue to challenge to to establish prejudice another avenue would be to do what exactly the supreme court said the hill wasn't done which is state that make an allegation or make an assertion that you would have gone to trial had you been properly advised and provide special circumstances th support that the reliance on the advice played an integral part in the police in this case mr dodd's has provided both an assertion and an affidavit that says he would not have pled guilty had he known the the fence had he gone to trial although you don't seem to be arguing that in in your brief is there anything in there just in the record as it is in this is not including the obviously the supplemental material i don't know if there is anything i don't think there is all there is in the was and i think that was part of our argument that the trial court level was mr dodge would would have tested the state's ability to prove beyond a reasonable doubt that he was actually guilty of the crime and that would include  dives his knowledge of the age of the victim proving that when he was in receipt of the material that he was first receipt of that he actually knew that who the individuals that were depicted in the photographs were underage and unfortunately we didn't have the benefit of viewing those photos and we didn't have the benefit you know now because of it not threaten credit at the time council dead but the so i think there is a possible the facts i think the facts would be if they can't prove the mr guys knew that the individuals depicted were under age that would be his possible that but as far as the record is is fairly sparse with regard to any defenses that may have other  address hall again i don't think this course bomba hall if you look at people versus korea that's a first district case and then a supreme court we're certainly bound by paul i think what you're really arguing is doesn't control the states that is that's a more accurate way to say it does actually act if we always that it doesn't control in this case and the reason why doesn't control in this case judges because first off it's never been explicitly overruled there's no case explicitly over people's korea it doesn't even expression we discuss the prejudice prong and all korea it does not but obviously kill does and so comparison to what we're looking at now that that is absolutely correct i said do think that although all those not specifically use the term prejudiced it implies stricklin and if it does so if you read the opinion  court has it starts out by going through incompetence and it measures the constitutional whether or not the the counsel's representation fell below an objective standard of reasonable as it doesn't say then now to establish we're talking about paul and really ignoring for the purposes of this discussion two other appellate cases clark and pena romero in another illinois supreme court case you lose which seem that those cases articulate the same framework that is in all there's no doubt about it but i point the court also to a two thousand and eight case people versus manning it's an illinois supreme court case and in that case it's dealing with ineffectiveness it cites korea and it says quote whether defendant's plea was knowingly and voluntarily made depends on whether the defendant had a fixed effective assistance of counsel that's the same that's the reverse way of saying the exact same thing that the court said in korea and cites to korea for that proposition so the i disagree that korea is dead law i think there is a a absolutely there is a i guess two different sets of case law on this issue and i would say the supreme court just speaking with two voices on this issue judge i'm not saying there's bigger two boys i guess right under say what you're saying it doesn't say that there's two different there's two different paths of law on this issue that korea is not that law and that if you in instances where the the advice given by counsel is affirmative miss advice and it's gross affirmative miss advice i think the inquiry should be for prejudice was the plea voluntary or involuntary the counsel's representation render the plea involuntary if it did that's prejudice and the reason why is because one individual pleads guilty they're giving up important important constitutional rights including the right to a jury trial the right to be confronted by witnesses the right to challenge the state's evidence to be proven guilty beyond a reasonable doubt it would be i think unreasonable to say that the police involuntary but there's nothing we're going to do about it the same thing that the korea says and that's in two thousand and eight mess in illinois supreme court case and again i want to move on to even it even if this court doesn't accept mr dobbs proposition that ballot in voluntar essentially prejudice i think mr dodd's still prevails in prevails for a couple reasons one he asserted in his affidavit he would not a pled guilty having known that the registration period was for life and if you look at the the record in this case you look at the transcript from the motion for a clarification of signs the advice in this case was was just so grossly wrong but not only that it's documented it's essentially stamped with the court's imprimatur the trial court says yes a ten year period that's the last ten years that said this is the state's attorney doesn't correct the defense lawyer part for the interruption if the defense lawyer at the time of trial knows that the judge and the prosecutor are wrong about the ten years and that the statute actually calls for reporting for life is this something that a defense lawyer would have a duty you're saying it's ten years if he has done or she has done the research and knows that in fact the court is wrong and acting under a misapprehension and so as a prosecutor as a defense lawyer have a duty to him so inform meaning he me of known that it was in fact that he wanted it on the record that they're still going to do this but he still in effect but he makes it even worse when they  in if you presume the lawyer knew what the law said but the defense but the prosecutor didn't and the judge did well i don't think any benefit endured to mr dodge in this case well sure this case this appeal without this appeal he would have just done is assuming you're trying to undo in essence what the laws require that that's correct but had mr dodson known at the time that the period was a lifetime he said as much he would have gone to trial and we wouldn't be here because we would have been there would have been a guilty plea so no i don't think i think the court i think that the defense attorney in this particular situation would have had an obligation because he's not serving his client's interests by keeping silent as a registration period that's something that's going to catch up with mr dobbs one way or another and in fact the dead and it was until ten years later after he thought his registration period was over that he was advised he had to keep registry and now he's left holding the bag and he's has i guess miss advice or at least knowing silence and complicit in this in this ten year registration period got a few asco but i think he would have obligation to to do so there you go on with your other not saying you're not addressing he says arguments which counts are just a series re some but in here who's there's a point where she's saying the if i'm correct i think here it's different because the advice is affirmative advice that the find it was told something that was not true he relied on that in pleading guilty as a result his guilty plea is not i think the case was is fairly clear on that point now the court to say that his pleas have voluntarily but we're not going to disturb it we're going to let it stand i think would be anathema to get to justice and to fairness this is a situation where this man rendered an involuntary guilty plea this court has an opportunity to correct the record to give him an opportunity to go to trial with the correct information i think take this course and do one oh actually yeah the first inner peace we do i mean we're not saying that he did a bang up job certainly this was a mistake right so but that's only half of the equation right there's two parts to strickland is he has to prove a prejudice and that's why i'm saying ok but he says dad just by he wants to rely on the korea decision the problem with that is that after there we have hill we have hall even have to deal all of which say you have to explain why you're going to trial would have been a rational choice but let me ask you this mystery of mine it seems to me when you take a look at hill and even at all what they're really getting added essence is ok you say you would go to try but we're going to test the for recipe of that assertion ok by asking you to show me either that you're innocent or  that there was a plausible defense that you would have been able to assert that you gave up so that by not going to but by by the existence of those things we can now believe that you would have gone to trial is and then in essence what all of these cases talk about in the prejudice prong absolutely all right well here in this circumstance you have not only the affidavit where he he would have but also the defense attorney filing a motion and going back before the sentencing judge saying well wait a minute isn't this an error when the we're being told by the probation officer that they or the probation office that this is going to be a lifetime impediment on your privacy rights your freedom rights because you said judge and the state said judge that this was only going to be for a ten year period they take the step of filing that  post sentencing motion which would least is another piece of evidence on the side of the scale that says ok this is or agree that at least back filing the motion is another factor to consider in assessing whether this was really a deal breaker for the defendant or not because if it was a deal breaker then it should go back right you say that there's that the prejudice component is about testing the veracity ok right so it's about whether he i think there's a distinction between whether he actually would have gone to trial and whether going to trial actually would have been a rational decision ok because prejudice means something that you're losing out on something that could have been that would have affected the outcome of the case right so which the only thing that could affect the outcome is if you had a plausible defense or you're alleging actual innocence and what just because you could say oh i would have gone to trial it could be a completely irrational decision because you have no hope of prevailing but what about an what is the fish and under the second prong i mean this putting in this case aside you've got a question what does a person really have to show clearly in this case just magnifies it is to the ignorance that was created here because nobody analyzed things properly so not going back to the prawn what is sufficient if there is in the record that in i understand we only have a partial record or we don't have really any record is to the trial court but counsel did say i'm saying that if you say that he that he doesn't know if he's a minor is a plausible defense well i mean i suppose i mean that's going to the sufficiency of the allegations that he could allege in there and he says i didn't know you know the age of the victim collateral devices you were led to make allegations right and if you don't say have the evidence with you you can explain why you don't have it we don't have any of that here there's no allegation about what is the fence would have been that he was innocent or he had some sort of he could have alleged way past that i mean he could've below asked to me i believe when we responded to the two fourteen zero one we had said he had failed to allege proper prejudice he said they asked pleading he didn't do that so i mean that's how this comes to the court now is effectively and efficiently pled to fourteen zero one right it was dismissed because the if the allegations he needed weren't there so when this case the trial courts when he could have gotten this information when he could have alleged that it didn't happen now until we are talking it goes up on to appeal and we respond by saying no for prejudice you have to  in the trial for as well that you have to allege what possible thank you hair is this actual innocence do we get some sort of development i'm on this argument i mean we're way past the point of whether the defend so there's no need for us to speculate about what is defenses may have been he didn't allege of in the first place so i mean we're past that point so i mean for the purpose of a remain and the remaining would be substituting but the defendant should so i mean to send it back it's a mall again to agree to replete it is he had the opportunity to do it and it's out there so i mean at this point to speculate as to what the record make he what sort of defenses he may have with us if very three people waive in the club at the ball and missing you get the judge give him the wrong information you have the prosecutor given wrong information you only have the probation you have the defense were given the wrong information and you have the probation department being accurate and you're talking about something that they can call a collateral consequences but it's a little bit more than collateral when you think you only have to do it for ten years and then ten years and one day comes up and they say you've got to do it the rest of your life due to abide by the reporting requirements for whatever reason strict liability violation of a you know of a criminal code which will result in an incarceration sword of damocles hanging over someone's head for the rest of their natural life this is this is arguably much stronger than the deportation because you're in a situation where for the rest of your life no matter where you seek to go you're going to have this requirement imposed upon you which is a restriction on your freedom and your privacy that the violation of which will be for whatever reason a criminal act so i'm not sure that's a path you want to go down well i can understand i can certainly understand i don't want to minimize what is i know it's a lifetime obligation that he asked yes  case where he got probation right which means he's less amenable then well i mean i minimal event because i probably don't know nash i don't know how we can that take that into consideration because we're trying to figure out what would be the defendant have done would have gone to trial on that and the consequences that he was facing by pleading guilty regardless of whether or not he thought he could prevail at trial were probation and reporting and he was concerned that it was not reporting for more than ten years or that it was just reporting for ten years that the minimal record that we have is quite evident are quite clear about that so this is not a situation where a man was in prison for a number of years and then they had the reporting requirement that was misrepresented to him i think the fact it was probation all of the factual circumstances that we're able to glean are something we have to take into account in deciding whether or not an snitch no no i am i understand your iris point on that at all and the only thing that i would add to it is that i can understand when you're when you're about to play you do a calculus he can face the same outcome no matter what he does ok so what he has to evaluate is going to trial rational putting aside the penalties is it rational because if i get convicted you know these clara things are going to fall right so what makes it rational or not is whether or not he's going to found guilty in real life it real life when people make these decisions whether to go to trial or plea there are certainly circumstances which with which a defendant is presented which would be deal breakers which would be well under the circumstances i'm willing to take risks which arguably would be a little more stringent sentence either a longer term of probation or maybe even in person ration because of what we know will happen if we plead guilty and what we're really doing on this whole case because everyone concedes that the guy was given affirmative bad information at the time he did his plea was whether it's plausible t believe on the record before us that this information with respect to his decision or not and it's very difficult to do and as i think we've all said it's even more difficult because of the nature of the misinformation and the consequences of that misinformation that were conveyed to the defendant under these circumstances yet this year and i think there's i think th this lifetime registration what if i got the lives right i mean which is essentially the calculation right and maybe that's what the motion to clarify and he said the things represent what that sentiment is not necessarily rational right because hill and hall is asking what is your decision about whether you've gone to trial is it based on the likelihood of your success at trial mr o'brien if you're correct and we reversed and remained you can test that out because he will he gets to replete everything sure we can redo it but he should have played that in his two fourteen zero one which is how he got here so i don't forsee julie that's where we're at and where you have the grows errors that concededly occurred is that there are at least some persuasive weight to say well if we're if you are right putting him in the same position to make the same choice with full information if you think it would be completely impossible to go to trial what is the harm in doing that this is unusual in maybe such as in where the guy could be put in jail for the sexual offense they at least hold a hearing right here yeah ok in this case there is no remedy are really no remedy because once the sense is imposed it's absolute he goes down the only difference is he was misinformed at the stage in there should be a r stops and says aren't you john doe john doe one time of the police you're within five hundred foot of that he's going through life because of that yes had he been properly advised up front he'd be suffering the same consequences is how you view but i'm saying no maybe he would have gone to trial maybe he would have won so he didn't hear of proper advice at any level from anyone and i say that is prejudice else and say he did his time now if he gets whacked you've got this on record for future cases but that's what i would have done because he has done an injustice and now we can't correct all injustices trial if you look at the transcript from motions left last sentance the his attorney says the ten year registration period was negotiated as part of the plea agreement which shows you it was important it was an important part of the would personally think if you like the whole point is you guys did a nice job with a ma