good morning chief justice carmen honorable members of the support i'm assistant state's attorney annette collins representing the people of the state of illinois in the matter before this court we brought this heel from the appellate court's judgment which apply this court's decisions in people versus procedural but little if any of the characteristics of the substance of the role itself as this court is well aware sets forth proper procedures to use in the event that a defendant request separate verdict forms on the various counts of murder if those counts carry different sentencing consequences due to the differing mental states the rule regulates the manner of determining defendant's culpability for and his corresponding sentence for the various murder counts in very limited narrow circumstances that's exactly what happened in smith and again in bailey separate murder counts carry different punishments depending on the mental state the defendant asked for separate forms but the court denied it and then when the jury returned a general verdict the court presumed guilty on the most serious count intentional murder consistent with one good count principles this court held the circuit court of used its discretion in doing so because it just wasn't fair for first the court to deny a request for separate verdict forms and then to presume guilt not in favor of the defendant but actually against him because it was a general verdict the defendant didn't want this court recognized the unfairness of that very narrow circumstance and created new procedures to remedy it smith also created a corresponding sentence alteration remedy in the event that the error occurs in so far as the verdict the the judge in that case by statute was required to find the aggravating circumstances that would lead to the imposition that the jury was foreclosed from doing so yet in sri roe vs summerlin the us supreme court held that announced a procedural rule despite the fact that death was imposed in many of the cases where defendants had attempted to obtain collateral relief from a final judgment on her brandy and on her rank and that that proves that just because  a narrowly focused on the alteration of sentence claiming that just because there's a sentence the defendant and yet that means the rule is substantive but we know when we take a look at the definition of substantive rules we the rule and smith and bailey first the rolands and bailey is very limited and only applicable if the defendant makes a request for separate verdict forms this is just that it can be based on how to oracle substantive rule if it's so it not only depends on a defendant's request but it doesn't have to be susanto provided by the circuit court second the rule in smith and bailey didn't categorically bar any statutory sentence altogether beyond the state's power to impose those sentences were not altered because of or or excuse me that the court in the state are not empowered to send to defendant to a life sentence the life sentence prefaced your comments by saying the issue is framed by the state i'm not it is very narrow and i've spent the bulk of your time because rightfully so on the procedure versus subset of nature but i'm to ask you a question that wasn't raised but it has come to mind if this court were to conclude that our decision in casselberry applies retroactively unclear or review what impact this court analyzed the sad and daily air under an abuse of discretion standard and abuse of discretion standard applies to trial lawyers errors of seizure it's typically a standard that we use when we're gauging whether or not a trial yet that is the only case that an in appears focus on and marshall is his primary support for his claim that smith in bailey our thoughts and rules but we know when we look at montgomery v louisiana and miller vs alabama that those cases are clearly substantive roles that have very little in common with smith an elderly person on this court was very clear in adolfo davis when it stated that the reason that miller versus alabama had announced  a life sentence in miller was an invalid because seizures procedures used in miller had nothing to do with the in a public ability in the unconstitutionality of the sentence the sentence was subst invalid as art by the constitutional protections under the eighth amendment that's why this court and the u s supreme court that recognize miller was substitute rule and while it's not always an easy task to determine whether or not a rule is substantive or procedural in this case it's fairly straightforward we have two very identifiable kind of excuse me very identifiable benchmarks for us to use we have on one hand miller versus alabama with shares almost none of the characteristics of smith and titus and on the excuse me second bailey and on the other hand we have the apprentice cases in particular if our understanding of state law changed as a result of the actual content of state law did not that's akin to what happened at smith and bailey the actual content of state law didn't change there's nothing constitutionally inf of the punishments for first degree murder statue a sentence for murder is not intrinsically or categorically prohibited all that changed in the wake of smith and bailey are the procedures in obtaining and interpreting the verdict again in very narrow circumstances like writing smith and bailey impact the operation of the trial process but do not bar have heard and i mean the question has recently been answered by the u s supreme court in montgomery refuse louisiana there specifically they said if you have a substantive rule that applies you know therefore retroactively the state has no authority to remedy that getting to the merits i think i'd like to just begin by starting with the one point that both of those in council and even price agreed upon and that is as counsel said we need to determine what the content of the procedure so that's an easy argument to make that this court as this court is held in davis as u s supreme court oh my god read just because you have a substantive pony the question becomes is that is that just a procedural component the question is is that incidental to a substantive guarantee if it is it's substantive rule that must be applied retroactively in this case is written bailey confer first substantive right to an actual erving it's not just a right to use two forms born mean something their verdict how do we know this is the case in smith this court unanimously distinguish between two types of air under under its rule one is in what wa daily hell that we're required to interpret the general verdict form as well the state has just correctly announced black letter law in you know determining what is the difference between substances and procedure and they accurately quoted of montgomery and henry for the proposition that a categorical that a substantive rule is generally a categorical are on either you know barring a conviction or barring a punishment is there some constitutional denial of right for him in that situation whether whether or not the defendant has discretion to invoke like a strategic choice you know such as what theory of murder they want to argue  for that's that's obviously at the discretion of the and whether they want to go that right but that a distinction between substance and procedure has never been dependent upon whether or not the defendant must invoke the right or whether the defendant can waive that right look at you know compulsory process that is that is such a community or the right to a meaningful defense but the defendant has invoked the right you have to time to call witnesses you have to present a defense if you want to invoke the right to a meaningful one so but these are finding according to nine one b six right that's a a criminal statute that cannot be applied now to the defendant who has been violated his rights were natural verdict underspent and bailey is there a difference between being clip page eight of the reply in our view that's virtually a concession of this entire issue if we're looking at the difference between what is this rule what qualities does it have and we say well the rule has all the qualities it's well one of something that everybody essential characteristics are identical and they're that way because of you know based on this court cited that invoked the principles of coverage of double jeopardy that's exactly why the right is what it is and why it's important to a defendant is because you know it would make no sense to give out the separate verdict forms and say well you're entitled to a verdict but you know if you're if it's going to be viewed as an acquittal it's not going to have any permanence like an acquittal would be that we completely defeat the whole purpose of it in the state would just go around you know if they're for clothes from doing something they just go ahead and do it and if they can get something somewhere to an intentional or not or knowing finding and the circular argument would be well i guess one for clothes for doing it in the first place i'm still concerned about the issue that was raised by the chief justice that the defendant and his counsel can make a strategic decision not to ask for a separate route from say no words murder or nothing then they should be allowed that discretion and as i mentioned her discretion has never been the key point as to whether something substantive or procedural and it was a national that as it is this second argument if we look at it is you know one of actively where it seems to be unknown what the strategy was you're asking us to reverse conviction from thirty years ago because a real challenge when built so therefore bailey says we're required to find that you know but also irrespective of a defense strategy right whether or not the particular defendant agreed with one way or another their strategy was evidence by the fact that they argue defense is clearly substantive and that requires a defendant to exercise that right and if any can show up and say absolutely nothing a trial in a way of all closing arguments if he wants after the state's proceeded with their case that  has never been the guidepost whether something substantive or procedural we look at most recently in my memory personally louisiana the issue is does the rule categorically bar a punishment for a class of them and that is exactly what it does so if this court meant exactly what it said and bailey and that i mean you couldn't find a more classically substantive rule i know of no other substance of rules that actually different very different from bring in all the other cases that the state cites which are all subject to harmless error or and even you know in in some respects miller versus alabama you know compare this is a substantive rule versus miller versus alabama miller specifically said we're not categorically barring the punishment on anyone necessarily we're saying there are two different classes of juveniles some of them are going to be workable others will not be right and we need to implement this procedure to find out which one you did this one once you once and a little has occurred there's no subsequent procedure the state accurately spoke about well one of the issues is could we could we come back with perfect procedures classically a substantive rule that miller would it would be which everyone was arguing before davis right came down our montgomery many scholars are saying that all of us alabama just went to satchel procedure that's exactly the same language used by the state in describing this rule in their opening brief nothing that produces a little more bars a natural life sentence predicated on intentional or knowing murder and the procedural but these reasons if there are no further questions we because one of the reasons court in montgomery called it was because the state and when they talked about its sentencing the way they talked about the statute under which the sentence was impulse was basically defendant's argument we have to go back to bailey and you have to look at the language in bailey discussing the double jeopardy hey simple intent and the due process case of the defendant over inflates the concept of jeopardy as it was in bailey bailey is not a double jeopardy case smith was not double jeopardy smith didn't even address double jeopardy principles in fact the reference to bowling to and the reference to jeopardy principles in this court's decision and they only was mitigated by this court's recognition that only two doesn't really apply to circumstances here and that is that they may be instructive they may be similar to the protection and the remedy that this court afforded it's met but they in no manner drove the substantive role because there is no substan role it's no here the jeopardy light to action in bailey was really just this court's limiting of the one good count rule remember the one good count rule allows an interpretation of a general verdict as guilty on the most serious count the intentional murder that can be a presumption made by the circuit court that principle is still sound general verdicts are still sound but in the very narrow circumstance for defendant makes a specific bust or separate verdict forms the court does not allow in a remedy for the sarah not allowed to invoke one good count principles wrong other there has to be a presumption on the least serious count that rebuttable presumption is similar to or like a jeopardy type protection but it's not double jeopardy principles at all defendants have rights to verdicts they don't have a constitutional right to a specific verdict because if they did have specific verdicts were categorically constitutionally required by two is together we have a fundamental equitable based prophylactic rule that protects a very narrow group of defendants against unfairness in fact in smith the defense argument wasn't based on double jeopardy the defense argument was based on a criticism of the one good rule and how it applied to this very narrow circumstance to thank you thank you he's number one eight six one three people of the state of illinois his name and price will be taken under vies ms agenda number eleven pounds mr mchenry thank you for your arguments this cornier excuse