thank you your honor good morning my name is michael dell coleman i'm representing jesse holborow as you noted this is a consolidated case with morris just to inform the court we're going to be splitting the time ten minutes ten minutes and five and five on rebuttal as you'll have to do that and you're yeah i'm more of a thank you thank you pled guilty and exchange for a sixteen year prison sentence the trial court told him repeatedly if that and i'm this is a quote if this were handled by other than a plea agreement you could get six to thirty years the readers of imus are various fines all of these all these things for every single charge this is what the judge said if this were handled by other than a playground or a slight variation on this if this were handled by other than a plea agreement i don't think it's a stretch to say that in other words the trial court implied that mr holder was not getting them as hard precisely because he was pleading guilty so the question is does what field control the factual distinction between the cases is that in which field there was no mention of  that when there's no mention of m s r and it subsequently added the terms of the specifically bargain for plea agreement have been breached the focus of the whitfield opinion i would submit was not whether the words were mentioned the question under which killed was wrong i just read a quote from what phil just briefly most importantly due process requires that it be evident from the record the defendants plead guilty is entered with full knowledge of the consequences in other words reviewing courts or to look at the defendant's reasonable objective understanding as to whether an assault was going to be a part of the plea or not so the question is not was m s r mentioned in some way shape or form the question is due process was due process satisfied and that does the defendant the defendant reasonably understand objective we understand from the courts of managements that m s r was to apply well in this case the answer has to be no if this were handled by other than a plea agreement i don't again i don't think it's a stretch to say that in that situation the defend generally the question of whether he's being mentioned at the plea agreement i would say yes now there could be there could be some situations in which that that might not be the case but i would just answer yes as far as a general rule because things can change from one hearing to another hearing and we don't know what negotiations are going on with the finance belief as and again if this is like a contract a lot happens up until we have the final sort of signing or agreement and that's when the trial court needs to say and i'll point out also i don't think it's asking too much for the trial court to say you're getting three years on a star you're getting two years of on the saar that's you know that's that's what it's it's and that's the end is for mandatory for a reason you're getting it i mean there's you know i'm not presenting any you know i don't think this court is requiring too much and with that i would say to maybe to be a little more specific i just don't think there should be any ambiguity it's again it's pretty simple just say you're getting m s r if they're it and then if the defendant has a complaint too bad they understand you're getting last three years he the court also had previously said these are the possible punishments you could get for a class x offense in the state of illinois so prior to saying plus m s r the purpose or implicit in the agreement being stated on the record in court is that that is the agreement and that it doesn't include anything that's not mentioned so receiving that agreed the negotiate agreement on the record in court and then admonishments are in contrast to what he has already agreed that he's agreed to thirty years he knows he's agreed to the thirty years this is what the sentence could have been if you had not agreed to or yours that are you saying counsel that there's a problem morris was these are classic felony charges in the state of illinois and they carry with it a possible punishment so the word passed was used of six to thirty years and the owner of the program her department of corrections use me plus three years mandatory supervised release and when a reasonable reading of that say in the saying that regardless of whether you get six to thirty you're going to serve three years mandatory supervised re e i don't think so i think maybe us reading at transcripts later and analyzing it it would as lawyers might understand that that's what that means but serving of us are so i think with looking at the admonishments morse knew he was pleading guilty to thirty years the court reads a list of other stuff other punishments he could receive and he would have no reason to think that the three years applied to him just like he would have no reason to think that he was beginning a six year sentence which the court also mention as a possible punishment for the ten thousand dollars fine and   that there was nothing else that the defendant would need to show as in turn in terms of whether he had known about them as are otherwise other than the by the the agreement and i think the same applies here the records also does not affirmatively show that that morris was aware of m s r so due process isn't satisfied is not satisfied in the same way it wasn't satisfied and with  moving on to the remedy that we've asked for in whitfield the court this court reduced the defendant's prison sentence by three years to approximate his original target and in this case the same remedy is not entirely available because mr morris does not have three years left of a sentence of to serve and we've asked this of this court reduce his sons by whatever amount he has left to serve  dismissed petitioners post conviction petition claiming a whitfield violation at the first stage of post conviction proceedings where the trial court's amazon admonishment set aside both rule four zero two and the petitioners due process rights the motions were sufficient in this case first between six and thirty years in the department of corrections to the range with the possibility that the part of the prison was a certainty the judge goes on to tell the defendant there is no provision for periodic imprisonment there is no provision for periodic probation and there is no provision for conditional discharge it was a certainty that the defendant would be receiving a term of incarceration and any term of incarceration would be pos three years of mandatory supervised release which equates these cases to the other cases where they are found any prison term will be followed by a term of mandatory supervised release counsel but when he did impose the sentence he never mentioned them when he actually imposed the sentence that is correct your honor however based on these in management it would be objectively unreasonable for the defendant to say that he didn't know these in managements around or the court is really saying a part of the punishment range is six six to thirty years in the department of corrections plus three years of mandatory supervised release if you don't think he could have possibly thought that it was an objective standard is what this court is use evaluate supreme court roll forward to admonish once and objectively by the language used here no your honor the term pos has a common ordinary meaning of in addition to and this would be very another example would be in a colloquial example if the defendant had perhaps taken his car and to have it fixed and as a mechanic how much will this part cost to repair on the mechanic said it will cost between one hundred and two hundred dollars for the park plus labor it would be an objectively unreasonable for the defendant to think that he would only have to pay the the one hundred to two hundred dollars for the part when the mechanic is specifically told him it's possibly per charge like time he gets the bill the labor charge would be included the right in front of him he'd know it would be itemized out arguably yes but based on what the mechanic said prior to at the time he getting an estimate say he would know that he would need to be paying one hundred or two hundred for the part itself plus the labor fee and likewise when the court told the defendant in this case that he would be getting between six and thirty years in the part of the corrections plus a three year term of mandatory a sense of thirty years in the part of corrections according to the department of corrections information he will actually be released next year in two thousand and ten so the defendant is actually not serving his entire thirty year sentence has a three year term of m s r he is serving closer to a fifteen year sen incarceration plus a three year term above us are which makes it less onerous in the sense he actually bargained for and nowhere in the defendant's post conviction petition does he state that he expected a service last in the thirty years of record as the departed we have a by the trial court are insufficient and finds it will appeal is not a new law then this court should remain on this case for a second season terminations of whether the defendant's late filing was due to his couple making since the defendant in this case filed his petition five years after the deadline that's now the defendant has stated that he already said in his petition why it's late that he's going to about mandatory supervised release while he was in prison however at the first stage of the proceedings the court and the people have not had the ability to evaluate this reason but the defendant has given defendant's claim in this case is a due process violation based on the voluntariness of this plea and not getting the benefit of the sparking the defendant has two remedies available under the law to withdraw his plea entirely and plead a new order would feel to modify his sense of imprisonment approximate the benefit of the bargain to the extent that he has a sentence left to be modified so the defendant in this case doesn't fact have a remedy he can withdraw his plea and plea to new he's asking this court to create a void sense because he does not like the remedy that's left for him at this stage of the i see the mother portion of my time is coming to a close and the assistant attorney general would like to address the court that's the reason stated here as well as the reasons in our brief the people of the state of illinois respectfully ask this court to affirm the decision of the first district of the to both defendants because both of these gentlemen pled guilty before this court issued its decision and whitfield and so if this court holds that will does not retroactive the neither of these these defendants could receive any form of relief no matter what type of  hours this court adopted the t test and in so doing the court commented that it was adopting that test because the t test is helpful and concise and the interests of federal k t s and state post conviction are very similar in that both of them are collateral attacks in which you address constitutional issues and in both cases and in both cases there's a similar interest in the finale of criminal convictions a kind of acknowledges that the t test governs here however he offers two reasons why this court should hold that the whitfield rule is an old rule of constitutional law that should have automatic retroactive up ation the first argument that he offers is that the appellate courts have held in some previous cases that will does not constitute a change in the law in support of that contention there's a number of appellate court cases i would point you in particular to molina and johnson it's important to note initially that none of these cases purport to apply the t test or to discuss retroactivity in any form and of course as appellate court cases they don't control the holdings of this court cases wills evans and mccoy that it cited in creating the whitfield role but in whitfield the score specifically stated that its holding was in conformity with the earlier decisions of this court and i think that choice of language is particularly apt here if the court doesn't whitfield we're bound by that is that by the earlier decisions of this court or that whitfield result is inevitable given the earlier decisions that we have made all that it seems to do is say well we have these earlier decisions we've examined them and we think that whitfield is not o mine in these particular things but nowhere does the court say that we have to reach whitfield's decision because of the things that we have previously held in wills and adams and mccoy the test under the t test for whether or not something is a new rule as the korten noted in people the more is that a rule is new if the result was not dictated by prior precedent and although this court said that whitfield is in conformity with wills and evans and mccoy and the various appellate court cases it did not say and in fact with field was not not novel and did not lack a legal basis without with field now contrast that with the with the test for whether or not something is new something that can be not novel and not lack a legal that's correct and that's the second portion of the t test to back up a little bit the initial inquiry under to guess whether or not a new rule of constitutional law should be held retroactive i guess what defendant and the state are arguing about here is whether or not whitfield constitutes a new rule at all if as defendant contends the rule was all then it automatically has retroactive application teague looks at whether or not new rules of constitutional law passed these very stringent exceptions that your honor just quoted in terms of whether or not something is a substantive rule that places certain primary individual conduct beyond the scope of the law or whether or not it has a it's a watershed rule of criminal procedure to return claim that you know may have a legal basis and he may even be able to cite some prior precedent of court that seems to support his position but that's not the same as saying that the cases result leads inexhaustibly from that prior precedent or that his case is result is unde in other words this court can find that whitfield constitutes a new rule without necessarily overturning johnson or molina and it's progeny once the court determines that whitfield a new rule then we get into the second portion of the t test in terms of determining first whether it's substitute or procedural and there's no real argument here from the defendant about whether or not it's a substantive or procedural rule whitfield doesn't place any sort of primary conduct outside the scope of criminal law it's about taking guilty pleas so it's very clearly a  procedural rule and once we determine that it is this is a procedural rule it can only qualify for retroactive application if we determine that it's a watershed rule of criminal procedure and it's important to note that neither this court nor the united states supreme court has ever found any procedural rule that has that type of watershed importance the closest the united states supreme court has come is to indicate that the rule announced in getting in the way right about the right to counsel in a criminal trial would probably qualify as a watershed rule well your honor i think we would agree that that's not the best practice admonishment a strictly speaking looking at what field strictly on its facts that would qualify however if this court decided that it wanted to expand whitfield's role beyond what field strip acts and hold that the type of admonishment that mr holborow received was not substantial compliance under rule four zero two we would urge the court to adopt the rule advocated by the state attorney there are ways of expanding whitfield's rule to take out the sort of admonishment that mr holborow got while leaving the sort of admonishment mr morris got as substantially complying with rule for zero two since it was mentioned in terms of the possible just a few point spread for later honors first i think it's pretty telling the state never disputes that the admonishments and holborow were misleading i think i mean i think it's fair to say there is no dispute that they're misleading and the question is whether whitfield applies or not this court had a few questions about when trial court should mention m s r how to say it already addressed this in which field by saying that the defendant has to understand and that is going to be is going to apply otherwise due process hasn't been hasn't been met that would be an objective test yes this is course isn't set in which field quoted from an appellate court because then you can see that it could be given in the beginning of the sentence discussion and not necessarily at sentencing something that's the final summation of everything that the parties have agreed to now i'm just not saying that it would never be sufficient if it was mentioned earlier i can't say that because i don't know this is again this is what would feel that it was just applying the factual looking for substantial compliance with the rule for it to the facts are different in every in every case i think due process is satisfied if it can be said that the defendant understood that m s r was going to attach whether that would mean that substantial that the court's rules also been complied with substantially maybe maybe not again i would defend it would depend on the facts of the case i don't think this one of my point is i don't think this court needs to say this is exactly what it has to be done this is exactly how it should be done if this court should just reaffirm that we meant what we said and in whitfield the defendant has to leave with the understanding that he's getting on the saar because it's a part it's a part of every bargain as is everyone except some of these defendants knows well this court said one of  though from an appellate court case from one thousand nine hundred one i don't think we have to get into teague or this retroactive analysis again this is just as you pointed out just as it's a factual question was there substantial compliance or not this is been dealt with by many  years that was what is agreement was that was what the trial court said he thought he was getting a bargain by pleading guilty and he was a subsequent addition of the m s r term breach the specific terms of that plea agreement and therefore  fields i want to make sure you understand your legal rights and the rights you give up by pleading guilty and then the court went on to state what the possible range of sentences could be so i think with that arise from before it and with morris having been told his negotiators specifically for him and said in the record prior to the hearing range of possible sentences it definitely created the impression that these were sentences that are in contrast to what he had agreed to which was thirty years without the mention of m s r when his negotiator it was stated on the record and i also completely disagree that there is a he and he sort of link between the appealing than just having it thrown out there as a list of possible punishments regarding the state's argument that he is not actually serving his full thirty years because he will receive some good time credit i think that he's pleading guilty under a system of sentencing where good time credit is implicit in the plea from and he said he understands that that's happening so when when he pleads guilty to thirty years he knows that he has some control to a certain extent over if he's going to get out earlier and still even with that control he was unaware that he would have an additional three years of amazon and finally in terms of