first case with our call this morning is agenda number ten case number one zero nine one six four people of the state of illinois versus charles  pornography on the ground that he received ineffective assistance of counsel specifically the court held that counsels performance was deficient because he invalidly waived to find its confrontation right by entering into an evidentiary stipulation without ensuring a defendant knew the stipulations content in public court's judgment should be reversed for two reasons first counsel stipulation and compensation waiver were valid under this court's precedent and specifically its holding in people v campbell and people v phillips second defendant cannot show that he was prejudiced by the stipulation because the record includes overwhelming evidence of his guilt and indicates that he would not have preceded by no there was a suppression motion there was a pretrial hearing on the motion or evidence was taken by nothing in the suppression motion itself was necessary to the suppression motion although defense efforts on the fourth amendment issue and to not to proceed to a contest a trial that he thought was unnecessary and not only was this counsel strategy and is not only supported by the record an overwhelming evidence of g but defendant agreed to the strategy defense counsel repeatedly confirmed in letters the defendant a defendant wanted to avoid a contested trial and wanted to proceed proceed by stipulated bench trial answer is yes it is so he did not object and therefore the stipulation here meets it's in part campbell phillips test and despite the camel phillips test and phillips explanation  bait for counsel they limit the issues and allowed defense counsel as this defense counsel in this case did to focus only on those important issues and not to spend time on issues that the defense cannot win on second part during first part of the interview according to  of the images of pornography in your possession how many of those images are child pornography defendant answers not very many later in the teach portion of the interview a very similar exchange occurs also  in addition to the strong innocence of parents guilt defendant was repeated we advised by his counsel that if they proceed by stipulating bench trial defend it should expect to be found guilty and then after is found guilty they would attack the fourth me ineffective assistance count of counsel client defender would have to show prejudice there's nothing to see in the record to suggest that defend is this decision to proceed by stipulate a bench trial or decision not to plead guilty or any of us decisions decisions at trial were based on an evaluation of the sex offender registry period all indications are that the fanny took his best chance at acquittal in light of all  t situation in the it's relevant in that part of the inquiry under cameron phillips is whether the stipulation fit in with council's trial strategy and tactics if if the content of seclusion completely contradicts what counsel trying to do in the case what counsel purports to be doing as part of his defense then i think the situation fail under that palm in this case the stipulation does not  good morning may it please the court morning counsel my name is steven brundage i represent charles condemning who is the appellee in this matter and what you have before you this morning as is basically three issues one is the issue of the search and seizure of a desk tendered to the government by a private citizen and whether or not the seizure and the ultimate search of that is agreed with and comported with the fourth amendment the other before you this morning is the sixth amendment violation regarding ineffective assistance of counsel under the in a fact of assistance of counsel argument we have really three issues that are supporting that argument one is the discovery violations and the errors which were committed i would submit to you by mr clinton's counsel at the trial level the record is clear there was a request for a critical piece of evidence in this case eighteen months before it was eventually tender to mr clinton's counsel eighteen months what's noteworthy there is that the item a video a a an audio tape was tendered one day before the fatal stipulation was entered with the court which ultimately convicted mr quinn down and i would seriously question was that discovery issue litigated in the ability or the appellate court found ineffective assistance of counsel and i think addressed the discovery issue as part of its findings but more a significant contained numerous factual errors i the state argued that at one point this morning the state said that when the stipulation was  entered in response to a question as to whether or not inadvertent erroneous sex offender registration information was tendered when the stipulation was entered the state said that mr clendon and thought he would be acquitted when the stipulation was entered the facts absolutely do not support that heat the first time this defendant charged with this felony saw the two pages the two page stipulation that ultimately convicted him and then required him as a collateral counsel consequence to register for life as a sex offender the first time he saw it was when he went to the cane county circuit clerk in purchased a copy of it now this is an issue which has been raised  i don't think he saw the first one nor was the difference between there was the first appeal ation was tendered to judge golden at the trial level and she found it to be defective regarding some irrelevant matters regarding evidentiary issues noted its relevance was not critical that more importantly the second stipulation the document that was tendered the court was the issue when that document was in fact tender to the court even judge golden noted  to be bound by the stipulation and he says yes it is yes it is is not an answer of yes i wish to be bound by the stipulation and that causes the problem with the campbell and philip's cases because a defend yes and that's supported by several different factual scenarios in this case he was underage the appellate court says the actual exchange was so mr linden and you wish to be bound by the stimulation is that correct yes it  the stipulation as per the testimony of his own trial counsel supports that answer to be yes it is that's the stipulation on the wise your honor he would be placed in the impossible position of agreeing to be bound by this piece of paper the contents of which he has no idea what's in it and what right never asked for continuing well you know i don't think my client mr condemning never asked for a continuance i think that would have stipulation yes your honor but the record is clear that in the two and a half years of representation between mr clendon and his counsel he met with mr cook when he met with his counsel one time in his office for about fifteen minutes and  went he met with him one time in his office i don't know if it was fifteen minutes or or so but i believe it was and then he would meet with him on those days when they had court either before the case was called or after the case was called and there were some letters that were exchanged but even mr rector's testimony at the post trial proceedings indicated he was has a tent at one point mr condense father was involved in this he was a he was a former prosecutor somewhat familiar with the law and he was also speaking with mr rector regarding his the first the process involving his son the reaction by mr the reaction by the defendant and his agree with your position do we have to agree with the position of of the appellate court where they said that the issue of whether defend it must be apprised of the contents of the stipulation is implicit clearly said that the defense counsel waiver of a defendant's right in a stipulation is valid as long as the stipulation is part of trial tactics and the defendant does not object and i would if we stop there maybe i could go along with the implicit analysis but the phillips court then stated quote that it had attached no other restrictions to defense counsel's authority to stipulate to the admission of evidence and except where the stipulation is tenet tantamount to a guilty plea imposes no obligation on the trout court or counsel to a admonished the defendant and ensure that the advisement is made a part of the record and then philip's also expert expressly rejected the proposition that a defendant must always be allowed ever advised of the implication in consequences of the stipulation so it seems to me that require management to the defendant regarding the implications and consequences of a stipulation as you're on to quote it i would submit to you that's different than informing the defendant what's in the stipulation it would produce an illogical conclusion an impossible conclusion because campbell requires that an attorney can waive a client's sixth amendment right to confrontation as long as the client does not object and it was legitimate trial tactics i would submit to you the correctly highlighted by the state in any stipulation in the state of illinois the magical language at the end of the stipulation word says this we do not agree that the stipulation is sufficient to convict the defendant or something like that that is not enough to a race an otherwise completely in accurate factually incorrect stipulation it's not enough just to wipe the slate clean from a stipulate stipulation that otherwise basically forecloses the defendant's guilt and justice thomas with your question regarding the phillips distinction regarding whether the issues foreclosed or not i would submit to you that what we have here also is almost a de fact pleading guilty and what made matters worse in this case is that the it was factually incorrect i believe the philips and campbell cases offer guidance on this issue but i would submit to you that taking philip's looking at philips in conjunction with campbell we must then create a rule or suggest a rule where the defendant knows what's in the stipulation and how that's done is  within the suggestions of the court does he need to sign it does it need to be read on the open record should there be a continuance of some sort so that he doesn't know what's in it otherwise his ability to object or not object as my brief indicates plops the defendant in a legal trapdoor he either objects to the document he's never seen or doesn't object when it's being tended to the court because he's never seen it what is missing from the letters  the letters don't talk the letters to mr kling down in from this counsel don't talk about what he was putting in the stipulation it just says i'm going to enter a stipulation in this case what he then put in the stipulation were issues which are it were factually incorrect and which were suspect he put words in there like mr clinton allegedly told a police officer when asked if he had child pornography not very many it is absolutely in dispute mr clendon and testified that he never said it we don't have detectives testimony for which he was never cross examined on because he mr clinton didn't have the opportunity to do so indicating that there were some tape statements from the defendant and the not the the court not very many statement was not taped mr clinton didn't know what was going into that stipulation and there was an argument made and is being made that he was aware that the stipulation was being entered and he wanted  it he didn't want to go to trial but even mr rector testified there was some hesitancy when that process was being reviewed and the amount of times or lack thereof that trial counsel met with mr down and could not possibly support a fully informed decision and now it's what's in the stipulation so that mr clendon can step in and do what campbell required or didn't require of him or mr rector steps in and that is did the client object and was it the result of legitimate trial tactics and because the an attorney can only wave a six month right sixth amendment right to confrontation if the client does not object and there were legitimate trial tactics when he waived mr clendon is right it was ineffective assistance of counsel we also have the issue of a sex offender misinformation i was submit  that is directly relevant and after my brief was filed a poor argument this morning or united states supreme court has decided that case and offers a guidance on it in the case of padilla versus kentucky where the united states supreme court now found and held that counsel is required to inform a defendant of collateral consequences in a criminal case generally the law in illinois before that was that the council does not require to inform criminal defendants of collateral consequences but if they do it has to be correct now we have an affirmative requirement that you must not only inform the defendant of collateral consequences but it has to be correct i would submit to you that in the padilla case it was a deportation issue does this individual got arrested for a drug charge pleaded guilty or entered some legal procedure and was told by his lawyer it won't result in deportation or probably not or something to that effect i would submit to you that deportation is as damaging as the difference between a ten year sex offender registration and that for a life that's a huge difference just but that testimony went on crossed that testimony would have been submitted without the benefit of the what i would suggest is a penultimate right of cross examination in the sixth amendment the sixth amendment now only controls this case in the ineffective assistance of counsel perspective but also this issue of the right of confrontation especially when a stipulation contains so many factual errors and basically rises to the level of a plea of guilty so we're suggesting that the sixth amendment violation of ineffective assistance of counsel is supported not only by the numerous discovery violations which would have offered light and guidance on the correct at least also you says the defendants must be advised as to what's contained in a stipulation which ultimately in this case convicts them especially disc case illustrates that issue because otherwise the defendant placed in the impossible task of objecting or not objecting to something they have never seen if there is no other questions on the the ineffective assistance of counsel i would just ask you to consider the pelleas position on this motion to suppress the computer and this involved the a private citizen giving the law enforcement a desk that she stole from the defendant the state relies heavily on the phillips case and i would just submit to you that in the phillips case there is a distinction and i would ask you to look closely at the witness witness living with that as she was not living with him they lived in separate residences  she had a key to his apartment and she was there just to water the plant access she did she did a private citizen took my client's disk and analogy here would be as if she pulled up with a u haul and took his filing cabinet because that's really what we're talking about here in this case it's a computer disk in it has a lot of zeros and ones in it that make up pictures and images and documents but it's the same type of filing cabinet as if she had gotten up a big filing cabinet she walks into the police department with this filing cabinet goes to a police officer and a government agent and says i believe there's some child pornography on this or in this there's no markings on the outside of the disk there's no markings on the outside of the filing cabinet and the government without the without a warrant takes the disk and start searching it opens the drawers of the filing cabinet start searching for the child pornography that's different than philips and it's different in that in philips and in jacobson united states supreme court case in those cases the government never seized the items those items in jacobson in the items in philips the pornography are the the computer was still in possession of a third party here the private party tendered this disc this filing cabinet to the government and the government se ultimately only for the amount of the defendant correct is attorney and the right to make this city as long as the client did not object and he did not i would say i would respectfully disagree i would say that he either objected or he was in the impossible position of either not objecting and standing quietly wants to be standing silently by when the mysterious paper was issued or being into forced acquiescence objecting to something he had never seen so for all the reasons listed in my brief guarding the search and seizure issues the in effect of assistance of counsel with all its some parts i would ask you to grant the relief that's requested in my brief thank you he this morning that argument we heard no argument about prejudice from defendant again i would stand on our prejudice our union our brief and what was discussed in argument earlier this morning there's simply no prejudice in regard to the ineffect asked how many of his images are put out if you include child pornography but as was pointed out stipulation actually says that also a mellow would testify that's offended said not very many when asked that question and that testimony supported by the police report believe from this record the defense was fully front informed about what was going on finding argues that the most compelling evidence of the reason the stipulation here should be considered an invalid compensation waiver is that defendant was very surprised when he read it but again there's undisputed record evidence that defendant was advised that he should expect to be found guilty it's unclear what that what surprises defendant or more suggesting the defense counsel had it anything with which he could test the prosecution's evidence here and this is an important point both for pleasure this for all of their friends claims but also for whether or not the situation is part of counsel trial tactics and strategy is simply defense counsel simply had no way to test the incriminating evidence including defendant's own statements particularly where defendant was not going to testify it's unclear what the fans council could have done in this them away from the trial judge who ultimately issue dissents in this case so it is relevant that stipulation did omit some evidence also let me ask you a question really at a point that was at the end of the you're posing what is the standard to determine the fed has had an opportunity to object how do we what is the standard general how does that apply in this case is presumed that they do they have to just have to be on  includes factual errors or if counsel does not give i think this goes more sure question of counsel does not to defend an opportunity to object well if there is some evidence that defense counsel in the prosecutor get together and they need to find out the process then opinions and feel if there are multiple opinions it's never suggested that the defendant phillips read the content of the stipulation stipulation in that case was allowed in port and in an accompanying affidavit from a lab technician so under the search and in that case a private person opened it was found child pornography and conveyed to the police that there was child pornography on this disk and once the private party conveyed that information to police the police can open up the disc and look at