good morning ladies and gentlemen my first case of the morning is case one one seven seventy nine people of the state of illinois versus carbon card or parties ready to  fission and the question was asked by justice comair as to whether or not the state had been given the opportunity any opportunity to respond to the allegations that were raised in the two fourteen zero one to ship to which our colleagues at the office of the attorney general replied no there had been no opportunity and alternately the decision that was rendered by this court did not deal precisely with the question of whether or not a two fourteen or one could be s that the dismissal was premature because the customary thirty day period provided for in rule one o five for the state to respond if it deemed that appropriate had not transpired it is difficult to imagine that based on this court's ruling in people versus law harm that it could imagine that what has transpired to date would transpire which failure to follow the rules of this court specifically because defendants were failing to follow the dictates of rule one o five providing for how service is to be affected on the opposing party  failure to follow the rules of this court as a sort to disable i trial court from being able to dismiss a petition which is admittedly of all the multiple editions for leave to appeal that have been filed on this very issue the factual differences between this case in those cases and the facts that were presented in people versus on dictate that equitable principles that would preclude a defendant from obtaining relief haste on his own mouthpiece and should be fully triggered in these situations and be the basis for denying re as well as the supporting rocker in to terminate that no relief could be granted because the basis of the complaint lacked any conceivable merit and again  and i think it's worth spending a moment to talk about what precisely the two fourteen zero one position in this case alleged which was simply that the defense it was not eligible for the thirty year and on that he received because he had not been charged there had been a charging document there had been a finding by the court that he had personally discharged and caused the death of the pit and the record which this court hass shows that there were six charges that were brought count five alleged that the defendant discharged the weapon that it proximately caused the death of the victim the judge said i'm finding him guilty there was a little bit of discussion later on because the judge took the time to actually motion to reconsider sentence the defense counsel right to challenge to the constitutionality of the add ons and that was litigated and that was litigated in the appellate court on the direct appeal there be customary thirty days didn't pass and there for the case has to be romantic equitable principles this is an action grounded in act and asked such the equitable principles that would prevent somebody from going forward should apply with full force because this defendant came before the appellate court with unclean hands having failed to comply with the service rules of one of will one of five having failed to serve in an appropriate manner and because his unclean hands i would forms the sustaining and keeping alive and a petition that has no value and by compelling in some sense there is no basis for remaining for the to the it's the fact that a petition is kept alive and it is on the docket of the circuit court and it is clogging up the circuit court dockets it's clogging up the appellate court talk it's i think it's more a matter of there is no useful purpose to be served by every man and aside from the fact that a rematch is an entirely inappropriate because there's no relief to be afforded because there's nothing incumbent on the trial court or on the state to do once it is returned to the trial court so it's the real thing additional right into some into a piece of paper without any value and keeping it absent alive that shouldn't be so it's our position that that remedy after minimum that that remedy is completely inappropriate because it results in uncomfortable with being able to draw an inference that's the only inference to draw in this case i don't fully understand would there be a different outcome if the world gentleman cl thing justice carmen there's never been a refusal by the people there's never been an assertion of the right to be properly served in accordance with rule one of five in any case that i've seen involving two fourteen zero one on appeal i am not familiar with a single case where the people have said this court shouldn't reach the merits of the defendant's claim because the people who are properly served any time that there's been and issue a substantive issue on a two fourteen zero one petition it's been responded to so we have never tried to use this as a shield  reviewing the merits of a two fourteen zero one petition what you have is a manufactured appellate claim that is divorced entirely from the very purpose of two want which is to consider the activities of an action being brought by an individual that would prevent it concerning the fact that if known at the time would have prevented the entry of judgment the substance of the role has been completely divorced from all of these matters and that's deeply troubling w reluctance to answer a substantive claim now missed yes with regard to that issue did the defendant actually have standing when he didn't challenge the dismissal of the petition and merits did he have standing to appeal t could not assert the right of the pick of the minor son's father to have proper service and this court talked about the fact that that minor responde basically assert the rights of his dad to be properly served whether standing is the proper term i think it's a little bit trickier because the petitioners petition is being dismissed so there is an action there is the ability to bring an action from from that technically but the underlying philosophy decision we have argued and i maintain should apply with full force to the situation because there is something fundamentally wrong with the defendant asserting the people's one person not being able to assert the right of another person particularly the defendant to step in and say well i can i that is the state of it's right to be notified they should not have that ability to do that imposition that this is an issue of judicial extrude discretion that the trial judge can say hey there was improper service or to research your petition or if you find that frivolous is in this case just dismiss you want to look at this record how how the people were served i mean the defendant makes the representation that he put it in the mail we don't really know one way or the other and that's part of the problem with the appellate with what the appellate court did here is that he did draw an affirmative inference that it wasn't done correctly i'm expecting for purposes of this argument the defendant's admission that you didn't serve the people properly because because you started growing it was same courts have been perceived you want this court to stand for the proposition that the trail judge can do exactly what he did was exactly and that there should not be the ability of defendants regardless of whether or not the state's attorneys in the room or not in the room rule from this court that would take care of all of these cases revivalists of the sister to kill or there's a whole line of cases o'connor is one of them talking about when a state's attorney is actually present in court room so is lawyer the judge is the judge to do nothing well i'm sure supreme court rule one or three of the court would have the the ability to find that because the defendant failed to exercise diligence that it could with or without motion of the opposing party of the state dismiss it and the rule provides that if that happens in excess of the statute of limitations that that would be with prejudice it's within the statute of limitations it would be without prejudice it's rule for the child court to act without service having been affected on the people that that's the authority i would rely on for the proposition that the court maintains the power to do that and because  just a very practical commonsense matter it can't be diligent to not follow a supreme court rule that specifically articulate three ways in which a defendant can affect service and none of which is what happened here  the defendant should not be entitle to take america's forty no one petition and receive appellate relief and keep it in some sort of suspended state of animation and based on the talking about in the basis of the people's brief there is forfeiture discussion and in so far as the defendant's inability to present  record that shows clear error it's in there and it talks about again the question of what the record actually affirmatively demonstrates in the way that the defendants  it's conceivable that so what's the harm the harm is that his petition is just missed without ever having to say respond to a substantive way he's not given process he's not given the full process to which he was entitled and there wasn't challenges there right that's correct so how much are we in the end benefit your man well he would he would at least get the prices to which is entitle knowing that the state had received the petition had reviewed the petition and had has consistently recognized the difficulties that incarcerated petitioners face in attempting to access the courts this court recently for example amended supreme court rule twelve to allow proof of service by a placements in itself and uphold the integrity of the process which is something that this court emphasise a great deal and in people versus the nz intending people versus laughing so it's simply allowing him to have his full day in court and set up short circuiting that process and skipping knows even though he or she did not speak up certainly an affirmative waiver would be ideal i'm actually speaking on the record acknowledging the position as opposed to merely being present on this because often discussed the need for an affirmative that all of the all of the pending cases on this issue a small acts by the judge could satisfy a faulty a matter of faulty service the the error in service was noticeable on the prison service why shouldn't we go back to ground zero and say this case was in the trial court the there was the you know nothing happened here but really nothing happened here why or why is the burden on the tr on the state street circuits the proceedings and that's something that this court has already found should not happen thank you a way in which she implored the square to have happened that happens here it is the defendant's affirmative injection of error into this record that is the sole basis for him claiming that he's entitled to appellate relief it is difficult to imagine a situation where a defendant should be less intitled to receive any form of appellate relief based on this form of a petition the question is not whether the trial court can do something additional the question is whether or not the defendant's failure to comply with this court's rules should compel a trial court to have to do more and i suggested this court that the answer to that question should be no this court has repeatedly say that the guiding principles in administer in two fourteen zero one really is that the petition needs to invoke the equitable powers of the circuit work to prevent the enforcement of case and the only thing that's unfair unjust and unfair excuse me would be to require more on the part of either the people or the child court when the defendant takes the position thirteen miscasts miss brown trigger thank you for your parents and our us this morning you're both excused at this time