supreme court and people versus hodge's how that a petition may only be dismissed at the first stage of a post conviction proceeding if all the claims in the petition lack an arguable basis in law or fact a claim lacks in our usual basis and  this stage mr kelly is only required to show the jest of a constitutional violation just as a low threshold that is easily satisfied in this case because mr kelly is arguing that his attorney was an effective he only has to show should have moved to suppress or challenge the lineup identification procedures based on a new line of statute that was that became effective on january first two thousand and fifteen that afflicted with you want to go through yes your honor it was case is not the lineup itself it's the trial so in this case mr kelly waived his right to a jury trial on january second and on january seventh of two thousand and fifteen he pled guilty and was sentenced on that date so on the date likely a motion to suppress based on that statute would have been to nine however as mr kelly alleges argues in his opening brief there's a second remedy under this line of statute that a second remedy is the remedy that allows mr there were problems with the old statute the new statute specifically or requires an independent administrators or not be used every other option besides an independent administrators or in this case is a work wire is the person administering the line up to not know who the suspect is to not have any idea who the victim is either or her generally who the suspect is so in this case the judge could have found in the judge the trial judge hoyt have instructed the jury that while the statute wasn't enough fact at that time of the lineup that the state's failure to comply with the statute could be considered by the jury even though the statute was not have an effect but right now mr kelly only has to show that it's possible that his attorney neglected his case because that statute became a fact and before he went to trial it's possible that his attorney could have either moved to suppress the line of identification or ask the trial court to instruct  event would be the lineup in this case then yes we would lose by an hour and there were two suggesting is that the courts should penalize the state and the police were not complying with the statute that wasn't in effect at the time that the line up to i don't agree that it's a hit that we're asking the court to penalize will suggest to you that they did something wrong right that they failed to do something but i want to i would presume that this that the trial court would be able to explain to the jury as while that that statute was in a fact so mr kelly is not advocating for a position that requires the authorities to act in accordance with the new statute he's just saying that look this new sta is in existence there was obviously a problem with the old statute and in this case there was not an independent and menace trader the officer that conducted the lineup in this case is the primary investigator who investigated who took witness statements and interviewed the victim as well as my client if yes what you're you're saying you're suggesting the legislature decided that police while you were problematic were these kinds one a problem and so we wanted to remedy that police can how could they comply with that which does not exist i agree that there is no one is saying that this particular lineup was necessarily for other it's better to  not that i recall that programmed thank you because mr kelly at this stage only has to show that it was possible that his of his attorney's conduct was deficient and he also has to show that it's possible that his attorney's deficient conduct prejudiced him here without the line of evidence all we have is all we have is the this statement from elizabeth spellman who did not see mr cowley the victim's test of the victim's statements to the police officer but the victim had a motive to fabricate his statement to the police officer because he told that the police officer that my client had owed him money and then the other codefendant in this case received a significantly life sentence in exchange for his received a significantly last sentence so mr kelly has shown and again he only has to show that it's possible that this is not a fanciful claim and it's not because that statute was in effect i at the time of his trial which was ok under existing law when it was done is there any similar line in the line of cases involving a similar statute or a similar procedure where it was retroactive to ban or or discount what happened that was illegal under the statute when it was done i don't have a case your honor that i don't need that says i'm trying to think of something that would be  use but i still do think that the statute the remedy portion of the statute shows that this this statute is and goes to the trial this line of identification information can go to the trial so i think the statute also clearly shows that the relevant retroactivity event is not the lineup but it is the trial itself because the line of could have been a challenge all the way up until then mr kelly has also shown the gist of a constitutional violation when he alleged that his attorney was ineffective or convincing him to plead guilty to a firearm and hence in his petition mr kelley a large there was no evidence in the record to support the firearm enhanced meant in this case your client suggest he had a weapon and got her my client did suggest that he had a weapon how lover throughout the record there's many different references to this gun like object in the indictment it's referred to as a firearm in a pistol and  and there's this issue of whether or not the victim and fire in the home that's correct that's based on the record that's my understanding as well but there's no evidence to show that the gun that my client that was supposedly found inside this residence was not the airsoft gun and i think that this this this confusion over the gun is present shown in this record buy  that he is not presume to know the difference between an airsoft gun and of a firearm and right now he just has to show that it's possible that's all that he needs to show is that it's possible that this is not a fantastic did review lots of different airsoft guns and they looked like every type of weapon you could possibly imagine would revolve including revolvers i was absolutely shocked quite frankly at how many different types of airsoft guns there are and how similar they luck and how now they don't even have the orange tips on the front so it's even more difficult to tell so i think that that shows the possibility and that's all that we have to do here all we have to show is that it's possible that web that the particular charge that he was under he was made aware of that at the time but then what he tells me as a trial is you know i committed a crime i'm i'm pleading guilty i know what i'm doing know what the legal definition of a firearm is so he may believe that there sophos what he may refer to their soft pistol as a firearm there's no evidence to show that he knows what this firearm is so it's just right now he just has to show that it's possible and it's possible that he has said that he she has shown that it's possible on both of these claims if your honour's have no further questions mr kelly respect oh well it's pens because they like the toy case which is said to make brief it's not necessary for the police recover an actual firearm right so if the victim testified that it looked like a gun to him that could be enough to sustain a conviction so in a journey could advise a client plead guilty anticipating a victim to testify that they may get told police and so they anticipate the defense of the victim to testify that they saw what they thought was a real gun and that could be enough to convict the defendant and sustain the conviction on the appeal so an attorney who knows that my advice your client to plead guilty even though for example here a potentially unrelated item and it i think it was on the along a flight path so there was some sort of factors where that inference could be made this wasn't fault but if there are multiple items and the victims knew that a firearm was taken during the event then at the time the threat is made and defense talked about whether they had to be armed with a firearm or not at the time they enter and they said that there wasn't any authority to show that that was an element of the whole issue and what had to be is they had to be armed firearm at the moment the offense is complete which is when the threat is made and if the defendant or want to accomplish this has in this in their possession an actual firearm taken in the during the burglary then they would be at least by accountability regardless of who possessed that firearm taken during the period burglary would be guilty of a home invasion armed with a firearm doesn't have to be that actual i know poked in front of the face of the victim it could be anybody who was in possession of a firearm an actual firearm if one was taken during the burglary and so a competent attorney to look at that could understand that it doesn't they don't have to prove the involvement of the  to convict him of a defense involving a firearm with a even with and with no fire recovered by the the police and a competent attorney would know that and know that that's not an element the police do not have to recover an actual firearm in order  because he chose one way or the other with respect to the the issue on the photo lineup that the public act ninety eight one thousand and fourteen that took effect after the photo lineup would have been before taking effect before the trial the state looks at this statute and there's a possibility that sort of like both sides could be at least partially right on this in the sense that the retroactivity have been in subsection j which talks about the the jury instruction well the jury instruction could be something that happens at a trial so the robot retroactivity event for the issue of the jury instruction could be at a trial happened after chael january first but then you also have to say  comply with his requirements when these requirements were not in effect at the time of the other elements retroactively event which is the subsection requiring the different things that the police have to do to conduct a lineup there's not reasonable suggest the legislature required the police to comply with something that wasn't even approved or even legally in effect it was approved in august twenty second two thousand and fourteen was this line up was in july twenty first two thousand and fourteen so there might have been a bill pending in the legislature but wasn't even passed by the legislature when the line up occurred so it's not reasonable to suspect that the legislature meant to require the police to comply with things that didn't even in us were in evening existence and also the delayed effective date this didn't even take effect until january first that's evidence simply of an intent not to make this retroactive because it had a provision for a future it affected day so at most it seems like what the defendant can get here is jury instruction if they can prove that or if they can persuade that the legislature did sort of intent for situations where there is a lineup for example before two thousand and fifteen that was not in compliance with these requirements the legislature may have intended for that to be a possible jury instruction that is for trials held after january first two thousand and fifteen that's as far as they get i don't think they can persuade that the legislature intended for suppression for lineups occurring before these procedures were even approved by the legislature let alone before the delay defective date came so without suppression the defense case is much harder to me i understand they only have to prove it is through like a non frivolous issue to get past first stage and i'm not sure they've argued this but the question is is this petition frivolous or not and if the state if this court agrees with the state's argument that these requirements do not apply retroactive and would not apply and not award suppression as a remedy in this circumstance then the defendant's claim will be harder to show it's non frivolous so i at least would like to suggest that there's a possibility that maybe the defense could be right in terms of the relevant retroactivity event being a trial at least for the limited part of the jury instruction but only for that and that under section four of the statute on statutes because we don't have any other evidence of legislative intent procedural rules only apply to the extent that they are practical and here not practical to apply a procedural requirement to something to require the police to do something before the change in law so section four is the general session statute is the general rule and it does not require all procedural changes to be made to apply to every proceeding so i'd like them to land graph state cites in this brief there's some analysis of a possible situations where for example if evidence is taken at a trial and a case on appeal and the rule changed on what evidence comes in they wouldn't be granted a new a new trial the procedural rule would take effect if the trial was held after the change but even though the case so knows that the defendant would not apply well that much is true but that doesn't mean the converse is true in other words not all procedural changes apply globally to a case that is still pending and that was the point that the state wanted to emphasize and so legal theory as the state argues and it's in its argument just just just now that we possibly may be cracked as to the retroactivity in the jury instructions and i think that the state is suggesting that it's possible that the statute may be in big us  that it's possible that a jury jury instruction could have been bred to the jury so that they went back and be aware of the state's noncompliance with the statute