me please a court justice smyth schmidt justice holder's work clerk or is it counsel for the state this is an appeal be dismissal of first stage post conviction petition i'm not going to spend any  alone threshold and i think the word just in five that it is it is it is quite unusual threshold and i think in this particular case the gist was sustained or the second or third stage we would be in a much different position perhaps but we're not at that point that our petition alleged three grounds under which post conviction really should be granted the first round was that it is our opinion that there was an apprentice violation which took place during the trial ultimately what happened is mr evans was accused of a home invasion against him vick though never in show that this big dome was over sixty years of age he was charged with home invasion two different house as well as aggravated battery to a person  carden exposing an individual to an extended term sentence under the rules that were created by you and he in the same set in this as you were not complying with in this case and the first time that was ever put a record that sevens and there's no relation of the victims just we just have the same last name by coincidence that it was only during the sentencing hearing following the bench trial which is when it was put out by the state with said well this individual off in some way shape or form that the state is seeking in his sentence based upon the fact that all evidence is of sixteen years of age that's one way this it could have filed a separate notice at some point in my hope in prior to case the reason why it was an aggravated battery was because the victim was of all the specific age i don't think it was a result of great bodily harm or or some other version that elevated the mystery misdemeanor battery three felony offense i think it was just a better is committed against a person above sixty years of age and so while i do agree that that was contained in the indictment and that each was an element that needed to be proved or that offense my argument would be total criminal procedure which qualified and required in addition to the writing that he submitted to the trier of fact and proven as an aggravating factor not as an element of the case so the example i would use is if this case ha proceeded to jury trial the prosecutors would have had to submit a jury instruction which essentially states if you find my client guilty susan if you find mr evans guilty of home invasion you can then consider the aggravating factor of whether or not the victim in that case was above the age of sixty just like you would a firearm incident in a murder case and so just to say that the state had to prove it somewhere up and down in writing somewhere during this case that he was above the age themselves since the home invasion count did not let's say for lack of a better word contain each in any way shape or form that that was not complied with now i quote the example of a defendant that this is the aggravating factor that exposes him to that range and that's why our concern is that that factor that the notice was not complied by the state were white house counsel did not inform his client that goes your  it was decided in the way that it was it was that a person has a right to know what he's facing prior to deciding how to proceed with his case and so you know i'm not going to get into that again and this is well settled  the affidavits and materials in support of the post conviction petition the the harm in this case i believe is demonstrated because if the defendant would have proceeded differently with his days were not if we record it was not and i would argue that the issue of this my client not having knowledge is the sentencing range was not a record proceeded if the sentencing he had a motion to reconsider sentence before the sentencing hearing was included he had a motion in his hand in hand wrote in the number of years that my client was given handed over to the judge the motion was heard and then did not and so counsel was not prepared sixty year age was in the indictment though it wasn't under that specific home invasion charge so he knew the the the victim's age right trial also at trial the victim testified regarding his eight birthdate in the date of the crime so the victim's age at the time of the crime was proven beyond a reasonable doubt a trial therefore a frenzy was met by that testimony or her question the difference between in defense counsel cross again did all three witnesses infinit didn't raise any objection to the fact these three witnesses would be testifying in trial in defense counsel stipulated to the admission of police interview you give him less than twenty years if the courts go justified to do a extended term sentence of say forty years or thirty one years or thirty years in one day but then the mitigation brings it down to twenty certainly i could argue that  and that is a possibility your honor but that would be an issue that's better discussed for a third stage petition where the defendant have to get on the stand and be cross examined by the state at this point we have to accept these affidavits is true which is that my client didn't take the plea off because he didn't think he could be sentenced to upwards of sixty years will have well all but i mean well i guess my understanding of the proceedings would have been