sentence argument the trial court abuse its discretion in sentencing don murray to fifteen years in prison the maximum sentence when it failed to consider mitigating factors considered and gave too much weight to in proper and unfair factors and injected personal prejudices into the proceedings for these reasons we ask that this honorable court reduce murray's actions or alternatively we asked that this court be khumri sentence and be a man for resentencing in front of a different judge in to possession of a controlled substance with an intent to deliver between one and fifteen grams of heroin in the state prison of the factual basis the state's evidence would have shown that murray was present at a party at his friend benjamin prince's house on snorted an entire pile of heroin instead of the one line sadly prison hall both passed away that weekend from drug overdoses defense counsel believed that this thing would be able to prove that mary was present at the party that he did sell there when and then it was his intent to deliver it while he was there thus mary pleaded guilty to the minimum sentence for this crime and the presumption under this is that she was a term of probation which is what defense counsel recommended the state recommended mary receive twelve years of imprisonment the trial judge sentenced him to fifteen years imprisonment the maximum sentence a number of years in this case occurred at the sentencing hearing and at the hearing on the mo instead the judge stated that he quote found no factors in mitigation at all the state argues on appeal that is that this was just a less than ideal way of saying that these factors were not convincing or dispositive but the judge's language was clear he did not say the mitigating evidence was not convincing he said that there was not in fact defense counsel included the judge's failure to consider mitigating evidence and his motion to reconsider sentence but at the hearing on the motion the judge in no way clarified his comment there were seven factors in mitigation of the judge should have considered first of all murray was trying to get with possessing one gram to possessing him delivering one gram the smallest amount of heroin under a class one felony it is what the factual basis was based on and any amount less than one gram would have been a class three felony with a sentence of two to five years murray had no prior convictions the state would argue that because mary was a drug addict and admitted to using drugs and selling drugs to support his addiction that he was still a law breaker however criminal records are not considered so  demonstrate that a person was caught breaking the law criminal records can demonstrate their person has been incarcerated or has undergone treatment and at the conclusion of that this position that reason continued to break the law anyway this court another and other mitigating factor is that mary was relatively young at the time of this offense and he had rehabilitated potential he was twenty four years old at the time of the offense and his uncle james brockman testified at the hearing on the motion to reconsider a sentence that mary signed up for drug rehabilitation and counseling and lawrence correctional center as well as in trade and education classes without any prompting from black men murray also expressed a desire to better himself and he wanted to be a better provider for his young son murray grew up in a poor social environment and struggled with drug addiction he was raised by his grandparents as both of his parents for drug addicts his grandparents passed away and at the four it's unclear when they passed away his uncle said that their that it when they passed away meant marie was just kind of left alone at the age of fourteen he started using drugs and despite all this he's managed to finish high school and take college courses he also held a job for nearly four years and he spent time with his son nearly every day another mitigating factor is that murray showed  morse both fritz and hall were friends of murray's and he stated that he would have stayed in chicago if you had known that this would happen another factor is that mary and her to blindly with the full range of sentences he was prepared to face the consequences and accept responsibility for his conduct but the trial judge did not show mary and the only entity finally married to not contemplate harming his offense he used heroin every day he found it for himself and he found a safe for his friends there were clearly mitigating factors in this case and that the trial judge should have considered that the child judge found that there were none the judge should have weighed the mitigation and the aggravation and sentence murray in a way that more accurately reflect the significant mitigation that i've just discussed in the trial court gave too much weight to aggravating factors and also considered inappropriate and i don't know liable factors and sentencing resulting in and unfair and excessive sentence murray was only alleged to have brought xanax and heroin to this party yet the judge repeatedly stated that murray also brought cooking to the party although there was no evidence of this a few of the judge's comments were i am convinced that you brought the cocaine that was that made its way into their bloodstream which resulted at least in part in respiratory failure and a death the judge also stated i mean they took the coke they  heroin and cocaine on their own but you supplied it the stay or use on appeal that this reference to cocaine hardly matters and that murray would not have been in a worse position if he had brought the cocaine at the party but this is simply not true one of the disused benjamin frets his cause of death was morphine and cocaine tice's city the the pathologist in france was unable to determine that the morphine was attributed to heroin so the cocaine may have been the proximate cause of fits is that murray did not deliver any cocaine to him and suggesting that he brought the cocaine to the party when there was no evidence of this is patently unfair and improper the judge was trying to hold murray responsible for heroin but then in mr francis case it just said morphine with no hair and without parentheses so considering it is the same pathologist and assuming the same methods how would she have been able to and similar to that point the court unfairly held mary responsible for the deaths of friends and home this was a party where drugs were present just the ones we know every heroin cocaine  alcohol and at the end of this party two people tragically died the judge made a finding of rum responsibility for the death for the deaths and he placed the blame on mary a church as we discussed before a charge exists for this and it would it could be drug induced homicide but the state who knows the case better than the judge did not bring the drug use homicide as one of the charges against mr murray the judge in this case punished murray for that offense he treated this case like it was a drug induced homicide yet it was possession with intent to deliver a small amount of heroin at one point the judge said that he was disappointed that all he could give murray was fifteen years the judge would like to give him more time the state argues on appeal that murray stimulated to heroin being a causative factor in the two deaths just to be clear this is not the case after the state and the trial court read the basis defense counsel was careful to agree that the state's evidence would have shown that murray was at the party he did sell heroin and it was his intent to deliver it defense counsel did discuss and agree that two people died and he would have been remiss in ignoring the child also injected improper personal prejudices in the proceedings he made a number of inappropriate remarks as discussed previously this is not a drug induced homicide case it was possession with an intent to deliver a small amount of heroin but when discussing why he doesn't always get the maximum the judge said he likes to leave some room at the top in case somebody comes in worse he then said i can't think of anything worse unless maybe he killed three people even corrected himself to say that murray didn't kill the people mind he improperly consider this despite saying that he did not and the judge also said that he was outraged and then he sentenced married in the maximum sentence because the trial court abuse its question in sentencing that married to fifteen years in prison the maximum sentence and because the trial court failed to consider mitigating factors considered and gave too much weight to improper and unfair factors and inject fifteen years nor did you fail to consider mitigating factors nor do you too much weight to improper factors nor did he inject personal bias as an all of whom to the absence of abuse of discretion to death resulted in part and everybody here said it was in park from the hero or the defendant had a background as an abuser of various drugs and also we sold heroin and bike in his forty's having the judge didn't meet mitigating factors little weight his reference to cocaine was harmless i'll say more about that later this is  you know oh there was no personal bias sentencing just recognition this is a serious offense a lot since indiscretion your honour's know all the cases that set out in my brief which i just presume to consider mitigating evidence the sentence aside and family from his drug abuse so that the euro the judge quickly contradicted himself that there were no mitigating factors by stating them and considering them this is a class one felony that governs one to fifteen grams there was a good deal  there he was charged with selling one gram but look at page five of my refit establishes all the hair one that was there much more than one gram the defendant so that he was twenty four be using drugs since age fourteen also sold drugs he did express remorse but it was quite terse look at page fifteen of my brief the defendants here specifically knew the harm he could cause he warned at the scene of the ones pure that's a quote again that's in my brief he sold drugs to others at a drug party and the judge a statement regarding no after the defendant's heroin helped a cause to death it was not released below that cocaine point the defendant does not claim play near the appellate court should not consider that matters not properly before this court there was enough evidence easily enough evidence in all candor your honour's to say that heroin contributed to the deaths of mr fritz and mr hall in essence the defendant all agreed it did don't take my word for it again i cite these in my brief pages seven eleven but there i was supposed from my position at all thirty one thirty two thirty nine forty forty one forty six forty nine fifty six fifty seven here only partially complained about that even in his motion to reconsider sentence again he didn't raise it from the other in that one partial cocaine methamphetamine and other drugs there two people died as a result sheet where he there was a female in the mail system the state's attorney paul term natural which ones that that defense counsel said the defendant may have been a partial cause of the de again this is all said out of those pages i just gave you earlier since counsel said two deaths occurring was a legitimate factor in aggravation at the sense in hearing this is the state's attorney wanted to present forensic pathology autopsy reports regarding judging to the mission of the reports just of their weight in context your honour's in context look at the record there it's my friend in context no question the morphine came from here one or at least no reasonable question about that it was a causative factor in each death defense counsel argue the consequences of the death were tragic and said the defendant's providing heroin was a contributing or was a contributory factor welcome page seven eleven my brief in this regard clearly the defense admitted stipulated to the death being at least partially debt's being least partially caused by heroin even if this court was to be what i would consider unduly critical of the two autopsy reports wording one not using a word here on the defendant paint we crossed one death with heroin that's not greatly to his credit look at the reports they make my point regarding the defendant's claim of the judge probation was a possibility he decided defendant wasn't worthy of his remark that he wasn't sorry but that he was sorry he couldn't give a higher sentence is of no moment it was simply his fate and this was a serious crime for which he thought th higher sentence he said however that again taking judges word that was a remark meant for the legislature not the defendant additionally in the defendant doesn't recognize this obviously the defendant doesn't recognize means needs to be reasonable and fair that concludes my comment factual basis so the scribe one gram of heroin had it ben fifteen grams of heroin surely the state would have said fifteen even even if it were slightly more than one gram it would still be on the low range of the one to fifteen you know even if it was three or four that still are less than fifteen and just as i discussed earlier you know the issue defense counsel below you did not agree that mr murray was the proximate cause of the deaths you green there were deaths and that's what the evidence would have shown and mr hall you know his cause of death was heroin methamphetamines and alcohol maintained that he wasn't he was charged with possession with intent to deliver one grams of heroin this was not a drug induced homicide in the state if they could prove it perhaps they would have charged it as a drug induced homicide and we feel that the sentence was excessive at fifteen years where the judge failed to consider those mitigating factors and as i discussed there were seven of them and that even if the judge mentioned one of them out you know when still yes it would have prevented it i mean yes can you still mean all of the other improper comments that showed his prejudices in this case so even if he had discussed some mitigating factors and said i find that the lack of conviction is and is mitigating you know he didn't he clearly just did not take anything into account any anything positive into account in this case and then his comments about well you know the only way this is worse is if you killed three people and who knows how many deaths your other cells that cause i mean the things you say and i wish i could give you more than fifteen years and says that that really is displeasure with the legislature but he said it too in about mari so use it with all of his improper comments he still we would still be out here even if you said he was considered