good morning called the docket today for thursday november seventeenth two thousand and eleven the first case on the agenda is agenda number eight case number one eleven seventy four six people the state of illinois thank you counsel and may please the court my name is david holland i'm here on behalf of the appellant mr l ron cathy mr cathy has made a pro se allegation that has appellate counsel was ineffective for not arguing that kathy was prejudice by the judges untimely ruling on kathy's montgomery motion as such the standard here today is whether there is an arguable basis for kathy's pro se allegation i'd like to point out right off the bat that the state is not contesting the prejudice prong of strickland that is if kathy's counsel had raised this issue kathy's trial would have been reviewed in light of this course decision and patrick and kathy would have received a new trial as such but issued today is the first prong of strickland that is is it arguable that a reasonable attorney would have raised this issue on kathy's behalf they answer that question is yes i'd like to start with probably the most egregious failure on this counsel's behalf the omission that falls the farthest outside of the prevailing norms for an illinois appellate attorney and that is that this court had actually announced that it had taken leave to appeal and phillips and patrick this issue was actually pending before this court and counsel never attempted to raise this issue even though kathy's direct appeal pended for another seven months after this court announce was going to be taking this issue now this case is particularly compelling because this attorney represented kathy both the trial and through the direct appeal in the appellate court and this court and at trial this counsel practically begged the judge for a ruling prior to trial on the montgomery motion and then when the judge ultimately ruled on that motion after cathy had testified this counsel actually explained the prejudice that  having the ruling be too late so essentially this council could have taken the argument that he made in the trial court and brought it to the appellate court and this court now this omission is glaring because this issue was so frequently litigated in the appellate court and in this court i know that this court is well aware of the his area of this issue but briefly there were published decisions on this issue there was a split in the appellate court on this issue the chicago daily la bolton had written an article about this issue and that was a local paper for this council and most critically this court had announced that it was taking a leave to appeal on this very issue and at no point in the nearly two years that this council represented kathy underactive feel that you raised this issue it is at least arguable that a reasonable tourney would not let his conviction let his client conviction become final without having this trial reviewed in light of this court's decision and patrick where this attorney was obviously so cognizant of the issue at trial i'd like to know that there's a line of argument in the state's briefing that i take exception with and that is that the state is intent on having this court ignore all these developments in the law that occurred during the pendency of kathy's direct appeal and the state as such they are going this court should only look to the state of the law at the time of the filing of the opening brief but the state doesn't cite any law any authority whatsoever for the proposition that the constitutional guarantee of effective assistance of appellate counsel simply disappears after counsel has filed his opening brief  that's simply not true i have in my opening brief and my reply brief particular on pages forty seven of the reply i've pointed this court to examples of where attorneys have raised issues in the latter stages of their appeal bid in the context of a prime the or batson or where counsel simply missed an issue but the principle behind those cases is that not only is it appropriate to raise issues in the latter stages of appeal if you missed it the first time around but you can actually be found ineffective for not doing so especially where the issue is so obvious during the pendency of the direct appeal but again the standard today is not nearly so high kathy only has to think five more months after this court announced it was taking on this issue i think a critical fact in this timeline is is that actually the appellate court had decided the philips case prior to the appellate court deciding kathy's case so i think it is at least arguable that a reasonable attorney would be up to date on the law on this issue especially where this appeal pended for so long i mean this isn't that council had to be on top of it the next day essentially th i think all these strickland factors seem to come back to one question and that is why didn't counsel raise this issue and because we don't know the answer to that question i think it shows that this petition is worthy of being advanced to the second stage of the post conviction hearing at the state of history's argues that this was actually an appellate strategic choice to not have raised this issue but the state doesn't know if that's true or not it's possible that  made a strategic choice not to resist issue i think it's unlikely i think it's also possible and more likely that appellate counsel simply missed the boat on this issue but either way the latter stages of the post conviction hearing  after designed to answer these questions that are necessarily collateral that are necessarily outside the record kathy's pro se allegation that his appellate counsel should have raised a meritorious issue is not frivolous now i'm arguing that it is a clarification that is not a new rule but i want to impress upon this court that my client's claim of ineffective assistance of counsel is in no way contingent on the retro activity of patrick the portion of the appellate court decision that i most intense appealing to this court is that the appellate court never applied strickland to my client's claim as this court is aware the lower court here held that patrick is not going to apply retroactively but then in one sentence the appellate court also held because patrick doesn't apply retroactively therefore counsel can't be ineffective but that's not an that's not a correct statement of law and it is certainly at least arguable that appellate counsel performed efficiently in this case nearly identical to patrick and i would argue that the prejudice here is greater  this case fits prejudice both under the patrick average and mullins and this is a situation where cathy's decision whether or not to testify was critical but  was also not fully required i mean kathy also had defense a defense witness mr james johnson who testified that as he was on his porch that evening with his family he saw two people struggling over a gun he says he saw two people struggling then he heard a gunshot and moved inside and in terms of the prejudice and the delay here mr mr patrick was in peace with a prior conviction for possession of controlled substance in this case mr cathy was impeached with his prior conviction identical to the charge  defense so i think the prejudice here is at its greatest but again the standard is significantly lower today the only has to be an arguable basis that if appellate counsel had raised this issue there's a reasonable probability it would be meritorious i would feel comfortable arguing that this issue is absolutely meritorious but again the standard is significantly lower for this p counsel my name is matthew connors and i represent the people the state of illinois this court should determine that the circuit court properly summarily dismissed the proceedings conviction petition because it did fail to state the gist of a claim of ineffective assistance appellate counsel at issue here is whether the rule articulated by this court in people versus patrick in philips and on the twenty third of january two thousand and nine is a political two petitioner at the time of his direct appeal on the twenty sixth of december two thousand and seven we're talking about a one year gap the argument raised by petitioner is reliant upon a hindsight analysis where petitioner is able to look at the subsequent development of the law and argue that based upon those subsequent development his attorney rendered ineffective assistance of counsel for failing to predict how the law would evolve at the time briefing began in this case petitioner could point to no published decision where there had ever been reversible error based upon a delayed montgomery ruling indeed the only case relied upon by petitioner is the fourth district case people versus ballard where that court indicated that it was not reversible error for a court to rule of paan it delayed  anything here the argument advanced by the people recognizes that petitioner has to demonstrate both prongs of the stricken burden and in this case the first prong it fails that is against the objective standard of the attorney's conduct a discussion of prejudice would demonstrate that this case falls fall afoul of all of the patrick and phillips cases that this court has recently ruled upon patrick and philip's average talker indeed mullens all discussed cases where there was a blanket witnesses had two convictions which he was impeached by and defense counsel out of pretrial motion indicating this was going to be a self defense claim which necessitated the defendant sesa money and that he was seeking to limit the number of convictions his client was going to impeached with so here we have a unique circumstance where before trial defense counsel knew his client had to testify to further his soft that's when he knew that those convictions were likely to be admissible he was seeking to limit the number of convictions that would be admissible and the circuit court had to gauge in an analysis of all of that evidence indeed in patchin phelps this court specifically held that there may be cases where a circuit court's delayed montgomery ruling might be proper this is one of those cases where the circuit court actively engaged in analysis of the evidence before it ruled even in the motion for a new trial that was followed by petitioners direct appeal counsel the circuit court indicated i needed more ruling issue the appellate court decision took place three weeks before the original direct appeal was published at that point in time you had a split of authority  knowledge of that that we're about to decide the issue it is the people's position in this case that any attempt to gauge the attorney's conduct relying upon a hindsight analysis of what was to come is strictly prohibited by stric and stricklin analysis all questions must be gauged out the distorting effect of hindsight so at the time that briefing began in this case it is clear no court had ever held this to be reversible error so then the question becomes at the time of the extraordinary remedy that petition is now seeking to this court be it an amended petition for the to appeal or some other process whether at that point in time there would have been there and this case it's simply not one now because this court to not speak with final on that issue told january twenty third two thousand and nine so it wasn't until that date practicalities here are the likelihood what if they did raise if the attorney did raise it in a reply brief a request that is one set of circumstances but the problem with with this secularization is that you know the court would then be forced to guess what exactly would happen with there have been a three forty one each seven objection to falling additional motion with a motion to cite additional  then hinge upon what occurred in that three week window to require every appellate attorney in this case to plead every conceivable issue but again this is false far fall from the stricken stand which says that great deference the the people's position is clear merely because other attorneys in the state of illinois have chosen to make an argument does not necessarily establish that this attorney here is ineffective and the reason that this distinction is crucial i objective measure of that attorneys conduct and in this case an objective measure is demonstrated by the fact that the defense attorney made clear at trial in his post trial motion on direct appeal and in the pillay that the primarily was to not contest a delayed montgomery rolly but was instead to contest whether or not the aggravated battery with a firearm conviction would be unduly prejudicial to the extent that other attorneys in the state chose to focus in their cases upon an ineffective assistance of counsel claim based upon a delayed montgomery ruling based upon different facts based upon what became the patch in philip's logic does not demonstrate that any attorney who failed to do so is objectively unreasonable tuckered decision absolutely laid forth a number of decisions and said it does not violate any of those rights and indeed the montgomery decision does not indicate that it would be anything near that magnitude to have a delayed montgomery ruling patrick and phillips made clear that this was a new decision that it was for the first time giving the circuit court a new obligation to ensure that in those circumstances where a pretrial montgomery motion was made and the circuit court could review the evidence in light of it  yes it is very much so that people proposition that a new rule exists based upon the fact that this court indicated that montgomery does not speak to this issue and that only after this court spoken patrick and philip's but a new requirement was opposed upon by the circuit court to the same extent this follows the same logic was articulated by this court in both morris and sanders where the courts recognize that we have now imposed an additional burden upon the circuit or and the cases that they were relying upon were in fact new laws and that's exactly what has occurred here is arguing that kathy had to testify in this case that's a misapprehension of the record the cold transcripts in this case show that counsel actually explained to the judge that if this monk amerie motion allows my  prior conviction that's identical to the charge offense a come in i'm going to advise him not to testify and then when the judge deferred his ruling he said well i want to hear if you're going to impeach the state's witnesses that's not part of the montgomery balancing test and then when the judge also only ruled on the motion counsel then explained what your honor i held back on impeaching the state's witness and in the hopes that it would help me win this motion i mean the prejudice here is extreme and justice thomas you know the time of the opening brief there were published cases on this issue or seven other states that found there to be an abuse of discretion and delaying the ruling but i want to stress that even if there was no law on this issue it was absolutely viable because it was an open question this court had yet to speak on the issue and again this counsel represented kathy for two years during and during the pendency of kathy's direct appeal this issue was so frequently should have been one of the tens of cases that were held in abeyance pending the issuance of the patrick decision but again the standard here is extremely low today that only has to be an arguable basis that kathy was prejudiced not only has been ar one eleven seven for six people versus kathy is taken under advisement agenda number eight i thank both council for your arguments today