have argued that that should be issue should be forfeited on their behalf but in any event and i quote there their reasoning from the appellate court when they said the motion to reconsider science and a hearing on that motion is agree that something's a critical stage of the proceedings and i'm not saying how we see an image but if we come out that we don't agree so would you address the rule six zero four six of i'm sure i'm sure well the state's primary argument is that the motion is not a critical stage because the supreme court this court's rules indicate that in that admonishing the defendant after a guilty plea he was told that he's entitled to an attorney while in my shing a defendant as to the motion to critical stages is derived from the constitution not this court's rules in this instance he thought it was represented he was represented all throughout trial his counsel filed a motion to reconsider sentence he  either the court said defendant he was in jail and he was not called to court the court said it since defense since defense counsel hasn't been here the last couple of times i'm going to go ahead and den consider certain mitigating circumstances was left point so it wouldn't preserve that and i think if if the fact it was given the defense counsel was given the chance to argue that motion he could've flushed some of those arguments out at the hearing and and i'd also point out that the motion is it's a critical stage not only because it preserves the shoes for review but for a couple other reasons consistent with the you know just supreme court's holding a member of the re which is it sets up an adversarial proceeding which may as the potential to effect that a fine and sentence and similar it's enough of a member of the ray which which the court held when when there's a when there's a hearing and adversarial proceeding which has the potential to affect the s even though in that case the sentence was pre determined arguments made by counsel on my part could have been influential on the prole board which i also meant we set the sentence that is a fact that is a defining factor of a critical stage and here at the motion to reconsider is a critical stage because of that not only because it preserves issues i think in the end this court's opinion read it implicitly found the motion of a critical stage by so we're we're left with if if it's a critical stage if we agree that it is critical states then we're dealing with here and herman was here analysis so it's either no we're right if we feel it isn't a critical stage you would agree that it's nowhere but if we agree that it is a critical stage what do we do with the appellate court opinion that really basically says nothing new i mean and these are raising here but nothing because to do so conflicted with decades of united states supreme court precedent holding that absence of counsel at a critical stage it cannot be harmless error and in one thousand nine hundred sixty one the court in hamilton v l a bama said that  make and i'd also point out that this is critical this was a critical stage for third reason which is that this is the final judgment in this case and the denial of the motion in counsel's absence therefore puts defendants appeal rights at stake because it triggers the it's the thirty day deadline for which the finding has the rights of found those of appeal and if if if this is an expert's a hearing there's no guarantee that the defense will know that the motion has been indicted that final judgment has been rendered in the case and the defendant might just be sitting in jail waiting to deter waiting to hear about this motion to reconsider from his attorney but because it was at that time because he filed the motion set for a hearing we don't know why he wasn't the first hearing date but it was set for a second hearing date at which he didn't appear also so i'm not saying that the fed it was pro se i am saying that there was an adversarial proceeding on the motion which had the potential to affect the defendant sentence but had the potential to preserve the pennants rights for appeal and which had the potential to affect the defendant's right to appeal  all which counsel was absent so that by any standards a complete deprivation i counsel in all the u s supreme court cases dealing with the complete deprivation of counsel the court looks at the individual proceeding and if for instance  case directly on point is a third circuit case called told the shoe in which the and in which the new jersey new jersey has a similar statute requiring a post sentencing motion to preserve issues for review and that includes the first second third and fourth district appellate courts have all found the motion to reconsider sort of sentencing hearing on emotion is a critical stage of the proceedings and that not all ink including the case  below which held as critical stage not all are found per se reversible error because there were different circumstances sometimes there was a standby counsel present which altered the analysis because there wasn't a complete deprivation  t in this case once the court set that hearing and set up that adversarial proceeding adversarial proceeding at which that motion was going to be ruled upon that require the presence of coun notice out again counsel doesn't show up again and is there anything in the record in this case that shows that counsel said file that after this was was injured filed a motion to reconsider because they were actually just circumstances he couldn't show up or she i don't know who it was no counsel never never brought the motion to reconsider up again after this denial but yes it is a complete provision at the hearing because the because it was experts say and if you look at all the united states supreme court cases dealing with complete analysis counsel whether the senate had counsel prior to the proceeding in question or after for instance in the u s few wade where  the post indictment pretrial lineup was found to be conducted as with deprivation of counsel the surrounding representation isn't at issue it's the proceeding in question and when that proceeding in question is  party an ex parte that has to be considered a complete deprivation of counsel but no consul do not bring up the motion to reconsider again so what should the judge done said down for another hearing well i understand the judge was impatient and probably didn't want to set it down for another hearing but the judge had options he could've sought to contact counsel we don't know if counsel at emergencies or what he could have at least brought the defendant and seeing if the defendant want to  the appointment of new counsel there friday safeguards that the trial court could have done but shirt for him to hold a hearing and deny the motion experts say it was not one of those options not represented the court does not stop to determine prejudice when there's a hearing at which the defendant is not represented at all who's a complete deprivation as to position does depend on our finding a critical representation was critical for other reasons other than preserving the issues that were preserved in the motion counsel needed to be present to ensure that the court's findings were correct at least to be there to object it needed to be present because final judgment was being rendered on the case and if it's mental health when the defendant's appeal rights are at stake because of a deadline that that is triggered at at the hearing the absence of coun immediate challenge to a sentence in the trial court and part of that right is setting the court's setting the motion to reconsider on the court's calendar for a in a reasonable amount of time for a determination and the the motion which does serve the function of preserving issues for appeal which is the critical factor but it's also being at the hearing presenting the motion if if there are no arguments to be made at least ensuring that the motion is the court's ruling is predicated on a proper factual scenario is proper and can be present to make objections and then finally to be present at the time a final judgment is rendered so that court so that just the court denied the motion without making findings and i would note that in read this court part of the reason this court made the motion to reconsider sentence obligatory upon a defendant who wants to raise sentencing issues on appeal is because the court wanted not only judicial kamiya to have issues but to have issues litigated below so that this court would have the trial court's reason judgment on those issues so that when they're brought up made please the court my name is michelle katz i'm a cook county assistant state's a tier state's attorney appearing on behalf of the people of the state of illinois in this case the defendant was subject to mandatory class x sentencing having committed six felonies over the course of nearly two decades and appling of sentencing the court had before it a thorough p s i i which inform the court of the defendant's seventeen year struggle with the heroin and cocaine addiction problems that he had had when he was a minor as well as the court had the arguments of counsel and counsel urged the imposition of a minimum sentence based on the fact that the home that was burglarized in this case was abandoned based on the fact that the defendant had problems based on the fact that the defendant had strong family support and had not gotten into any trouble during the pendency of this case and after considering that p s i am the arguments of counsel the trial court imposed sentence just four years above the mandatory minimum that beingness a ten year sentence on the burglary charge with a three year concurrent sentence on the possession of burglary tool charge and after doing that the court in strict compliance with supreme court will six o five admonish the defendant and i'm going to limit it to what case that in the event that the defendant of ben didn't wish to challenge his sentence that he needed to file a timely motion to reconsider sentence within thirty days and that upon receiving a ruling on that motion to reconsider sentence a timely notice of appeal within thirty days both of which were done in this case the defense counsel urged in his written motion to reconsider sentence that the sentence that was imposed on the defendant was excessive and that the sentence did not comply with the illinois constitution's requirement that a sentence be imposed with regard to the rehabilitative nature two to rehabilitating the defendant among other things that were in there and that motion was then before the trial court it was continued because there was a request that it be continued for a week for counsel to have a hearing on it the following week counsel did not appear in court the court continued continued the motion and when counsel did not appear the second time the court decided that it was going to rule on that motion noted that there was a claim that the defendant sentence was excessive the court tonight the motion and within the necessary time defense counsel appeal that ruling the first district appellate court affirms the defendant's sentence and there were numerous sentencing issues that were raised below all but one have then  abandoned finding that the defendant was not that the trial court did not error in refusing to order a psychological and physical study the trial counsel was not  ineffective for failing to request that that study be conducted the trial counsel was not ineffective for arguing at the sentencing hearing in the manner in which he did and by not referring to some of the things that were contained in the p including the defendant's drug history learning disability that he had suffered as a child the appellate court rejected the defendant's claim that defense counsel rendered ineffective assistance of coun in the handling of the motion to reconsider sentence both in terms of what he deemed to be an incomplete motion to reconsider sentence as well as where counsel was not present at the time of the court's ruling and also found that the defendant was not denied counsel where the court ruled that a critical stage of the proceedings in his absence the sole issue before this court is whether or not trials the trial court's ruling on that motion to reconsider sense which was made in the absence of counsel constitutes a structural error on your chronic in order words offen deprivation of counsel occurs at a critical stage of the proceedings in this case he is an able to establish either justice is carr miring kilbride in response to your question about whether or not there was a complete separation of counsel in this case the state firmly takes the position as it did below and in accordance with the appellate court's finding that there was not a complete deprivation of counsel where what this court's holding in people versus reed said was complied with that is the defense counsel filed timely motion to reconsider sentence which had the legal effect of adequately safeguarding the defendant's right to appeal from his sentence and its significance in significance in this regard that the defendant can see it's the legal sufficiency of that motion to reconsider sentence he just told court i'm going to quote it specifically said while burnett complains that the motion here lacks sufficient detail to preserve meritorious issues he does not specify any new or additional issues he would have raised on this appeal counsel better prepared the motion burnett has not shown in adequate preparation of the written motion had any prejudicial effect we find the written motion did not show ineffective assistance of counsel in light of defendant coming before this court abandoning any claim as to the sufficiency of that motion the people's position that that motion is legally sufficient to have done exactly what this court required  in people versus reed and therefore on that basis alone this court can affirm the appellate court's holding in this case defense counsel's attempt to say that it's a complete deprivation of counsel because it was made ex parte is not sufficient overcome first of all a body of case law that deals with ex parte communications and whether or not that's automatically going to be deemed a reversible error and i'm referring here to the people to the court this court's holdings in people versus kleiner people versus childs both of which did involve critical stages of the proceedings it was jury deliberations at which point the trial court did in fact engage an ex party communications in the absence of counsel in his brief defense defendant attempts to say that those cases only dealt with the defendant's personal right to be present but if you look at both of those cases they talk about and reference the sixth amendment and a defendant's right to counsel and when those x party communications took place counsel was not present cleaner's a capital case is this court is well aware and in both of those situations the court this court held that those cases had to be subject to a harmless error analysis are four defendants labeling this an x party communication doesn't get around the fact that there was not a complete deprivation of counsel the second piece of this aside from this court's ability to from solely on that basis the second part of the inquiry have to do with what constitutes a critical stage of the proceedings and yes your honor justice time thomas there was a concession below that a motion to reconsider sentence is a critical stage of the proceedings there was not a concession that a hearing on a motion to reconsider sentence is standing on its own a critical stage of the proceedings but there was a concession and that concession was improperly made and based on this court's holding an artist's it's the state's position that as the apple e below that this claim is properly raised but even going beyond argus it's very difficult to see where this court has never specifically ruled on this issue and where this issue is inextricably linked to whether or not the defendants defense counsel's absence at the time of a court's ruling on a motion to reconsider  be construed as a critical stage of the proceedings how this court could not in the first instance consider what what the legal effect really was of this court's holding in people versus re did people versus reads requirement the defendant file a motion to reconsider sentence in order to preserve a sensing issue on appeal somehow transform a motion to reconsider sentence itself into a critical stage of the proceedings and in order to answer that question i believe that it's necessary for this court to consider the difference between a pleading and a non pleading defend it because this is the rules of this court supreme court rules six o five a six o five b and six o five c differentiate the way in which a defendant is treated a defendant who goes to trial  is not a court by the supreme court rule provided with the assistance of counsel a motion in marked contrast to a defendant who either on a negotiated plea or in an open plea i provided with the assistance of counsel at a motion and there's a good reason for the distinction that this court draws in making those supreme court rules and that is because a defendant who after a trial fails to file a motion to reconsider sentence while it is true that he is subject to a state rule of forfeiture he is not precluded from raising sentencing issues he's not precluded from filing a notice of appeal he's not precluded from raising a sentencing issue because he remains such a shock to the stablish in plain error under rule six fifteen and gaining there by access to the courts to review any claims of sentencing improper improprieties that may have transpired in contrast a defendant who pleads guilty has to there's then the distinction between one who pleads guilty and it's a negotiated plea and one where it's an open plea but this court has said and i'm referring you now to both wallace and oh we'll that the filing of either the motion to withdraw the guilty plea or the motion to reconsider sentence is a condition precedent to him taking an appeal from either the plea or the sentencing hearing meaning that the pleading the defendant cannot avail himself of the protection of plain air rule because the proper appellate court presented with a defendant who pleads guilty failing to file a motion to reconsider sentence is a dismissal of his appeal the problem is that the first case that considered this issue and it all goes back to the illinois appellate court case of people that persist brasso was a plea it was a pleading defendant to be perfectly clear what i'm saying to this court is yes for a pleading defendant it is a critical stage of the proceedings and he is entitled to the assistance of counsel because of what he can lose it's the same thing with the case of charlie versus show the out of court out of state court case relied on by defense counsel that is a plea that is an entirely different sits situation from the one at bar here going beyon the difference between a pleading and a non pleading defend that also in terms of looking at this court's rules and specifically supreme court will six o five a we have two cases people versus henderson and people versus medina in both of those cases the court this court was faced with the question of whether or not the failure to strictly comply with the requirements of that rule in the case of medina the failure to even mention to the defendant that he had to file a motion to reconsider sentence was subject to a harmless error analysis in this court various  to make any such ruling saying a defend it remains free under the plane as action to bring his sentencing claim and even alluded pretty strongly to the fact that even if that sentencing claim were   all outside to be to horse the record that it would still be something there would be a basis there for the court to to rule upon in this situation there was no complete deprivation of counsel and this court should further find that a motion to reconsider sentence is not a critical stage and we reach this issue also because as defense counsel said to you he's looking for a rule for all  in this particular situation were defense counsel did what was necessary under the law even if this court were to find that a motion to reconsider sentence is a critical stage of the proceedings entitling a defendant to the assistance of coun there wouldn't be a change but the concern is for cases were outstanding in illinois where defendants have filed post say motions to reconsider sentence and have not received the assistance of counsel going beyond the argument that i've made so far turning to the very limited question of whether or not the court's ruling on a motion to reconsider sentence is in itself or  defense attorney who fails to file a notice of appeal which is substantial right the fill your to do that in and of itself does not constitute a structural error there's still got to be a strickland analysis applied it's not subject to a chronic analysis taking row versus floor search applying it in the context of a motion to reconsider sentence it would mean this would mean that at most again assuming that this court finds that the motion itself the motion to reconsider is a critical stage the council would have to consult with the defendant and then what was done or wasn't on in terms of filing the actual motion to reconsider sentence would be subject to a strict one else it makes absolutely no sense to say that a defendant who is deprived of a motion to reconsider sentence gets a strickland analysis and has to make a showing of prejudice but the defendant in this case who has an attorney who affectively represents and who files a motion the substance of which is not contested to be legally inadequate here is he is not required to make a showing of prejudice that is a position that does not make any sense there is no right to a hearing your honor you asked whether or not the court if the attorney was there would have to give counsel the opportunity to make an argument it's the people's position that the court would not that there is no entitle me to make an argument in support the court could say i've considered the motion i'm denying it and the basis for that argument cited in our brief is the fact that this court has held that its offender doesn't have a right to oral argument on it and appeal and also that a defendant does not have a right to make an argument in support of a motion for a directed verdict finally with respect to this issue about the notice of appeal somehow the notice of appeal period is triggered by the court's ruling on the motion to reconsider sentence and that potentially there could be a defendant who doesn't know who doesn't get notice so he's not able to  file an effective notice of appeal it's dispelled by the very facts of this case it's obvious that notice was given to the attorney who i should mention never came before the court and contested the fact that this was done in his absence but putting that aside the the attorney was given the notice that was necessary and this court's rule six zero five a which was complied with again requires that the court specifically admonished the defendant about the necessity of filing a notice of appeal within thirty days on the ruling for the motion to reconsider sentence and furthermore to cover the outside chance that a defendant is not timely notified of the the court's ruling on a motion to reconsider sentence six o six c e provides first six month period of time during which the defendant can file a late notice of appeal and i'd suggest this court that if there's ever going to be good grounds to excuse a late filing this would be prejudice trials never once mentions the sixth amendment and i find it notable that the state never once mentions the united states supreme court cases they do mention the sixth amendment this is a sixth amendment case and the state's ruling on a personal same as a motion to rest a motion to suppress even a direct appeal that defendant doesn't have to doesn't have to file one of those motions or doesn't have to pursue a direct appeal but once he does he's entitled to counsel so that the state's argument that strickland has to apply because it applies and robie floors are to go is is inconsistent with how this court is how this court in the u s supreme court has looked at these issues in the past under in the courts and the states argument that because failure to admonish is look that under harmless error analysis under henderson it somehow follows that the actual deprivation of counsel can also be harmless error is essentially sequitur and that's proven because this court has also held that as the state just conceded the right to counsel a guilty plea post post guilty plea motion is absolute yet the court this court is also held that feeling mohnish about that is something harmless there and finally i i agree that this court regarding the state's forfeiture of the critical stage argument i agree this court will likely reach that issue but i ask this court to strongly consider the fact that the state conceive of this below and analyzing the strength of the state's argument on appeal be the mistake the state conceded at the at the hearing is a critical stage below and this this position was most strongly supported by not only read but member of the re and the characteristics of the hearing of the motion reconsider sentence and it's and it's it's undisputed that under decades of supreme court rule it's u s supreme court at on the motion to reconsider its version of how this is courts are two two required that the fence counsel if he's given a hearing if you request a hearing allowed to present argument in that hearing as the held defense counsel's presence to marshal the facts and present an argument is essential that an adversarial proceeding which can affect the defendant sentence so and if you look at section five eight one see which which is which i guess is now under five s four point is entitle to a hearing and along with that hearing should be in the right to present argument but again even if it's not even if there is no right to argue it's still a critical stage for the other reasons which is just having to find a defense counsel present at final judgment is a is a defining characteristic defining characteristic of a critical stage under this court is no other