court my name is linda all taaffe and i represent william robbins well you madam said it was charged with first degree murder after the jury heard all the evidence robinson decided to waive his right to the jury and ask the court to find him guilty of the lesser offense of involuntary manslaughter which is a class three offense but the sentencing range of five years the court didn't pose that offense and impose a conviction for involuntary manslaughter but punish return for sentencing and for the very first time the prosecution asked for and the court agreed to impose a conviction and sentence for the class two offense of involuntary manslaughter of a household member but the sentencing range of two to fourteen years post try motion and a motion to reconsider the sentence and she asserted to the court that she made strategic decisions knowing that this was a class three offense she told the court she would not have asked for the lesser offense of involuntary manslaughter had she been apprised of this fact she consulted with her client they agreed to go for the lesser offense knowing it to be a class three offense with a sentencing range of two to five years at what point during the course of  primal the defense request the involuntary manslaughter so the ration after the evidence had been presented to the state had presented its case and they decided to waive the jury and ask the court for the lesser at what point should the state then have notified the defendant of the enhancing factor if it had no knowledge that the defendant would be asking for the lesser included in the first place well the defense has every right to ask for a no question about ok but the state certainly in determining when the whether and whether or not they should make disclosure why would they have made any disclosure before before the time that the defendant asks for a lesser included a defense asking for involuntary mass are because there is evidence of recklessness if if the state wanted available to it the class two offense of involuntary manslaughter of a household member it was the state's duty then to charge it no you're missing what i can because i didn't state it very well you've argued with the state should have invision could happen with her case with the same be true for the defense and vision of what could happen to their case that is that they could be faced with a household i don't think it's possible for the defense or fair for the defense to have to anticipate that because nothing about what is included in the statute or the fact that there is this element that you know could be added on puts this defense i notice of the state's intent so this the defense is going to make strategic decisions based on i guess as to well you know they might they might go instrument approach to determine whether something is in fact a lesser included offense and we look at the factual description of the greater france to see if there's any outline of the facts or conduct necessary to prove that lesser offense in and the constitutional concerns in determining whether something is a lesser included is doesn't put them in the notice so that he can prepare a defense and plan strategies accordingly here you know defense counsel clearly articulated in her post trial motions we were hampered in our ability to prepare our defense and to plan our strategy we asked for involuntary manslaughter based on a belief that it was a class three cents that's what we knew it to be we had no reason to believe no reason to know based on the language in the indictment that at sentencing he was suddenly going to be subject to a higher range of penalties and it's not something that can be just described a well not as found by the court i think you cannot look at the evidence says it came out in trial to determine whether it is a lesser included offense because the defense had no opportunity to defend against felony so you know i think part of the state's argument is somewhat invited error you may ask and you did have the right as already as you've already indicated to us for involuntary  you're saying we had no way of knowing that's why i'm wondering if if it is not in dispute that george was a household member the only involuntary manslaughter that was available to the defendant would have been the class two felony version because it's  then to say when we asked for involuntary manslaughter we were expecting a class three and it couldn't be anything but a class two if there was i also rem but if you're looking at the facts as they're presented at trial to determine whether it's a lesser included offense that approach has been rejected and i think to look at the facts as they've been presented at trial and use that against him now robinson had no opportunity defend against that he may have not have testified he may not have you know how his mother testify but the state to its burden as  to her purported status as a household member she could challenge you know evidence of their preferences like came out regarding the nine one one tapes as hearsay and there are a lot of things that he could have done that his well i don't think it can be characterized this as an enhancement because i think that sort of distinction has been rejected by a plenty and if we look at the impact that the additional fact has which is to does it increase the sentencing range in the classic sense it is an element of the fence and that's exactly what happened in this case he was convicted of involuntary manslaughter and this additional fact increased sentencing range happened in this case is a violation of his due process because you can't put a defendant and you can require a defendant to guess which way the state is going to go guess i would just like to address a recent case people versus davis in which a similar claim was right before this court and in that case the defendant did also made the claim that his conviction he was convicted of a charge offense based on involuntary manslaughter of a household member this case is very different from what happened in davis because in that case this court didn't reach the question of whether involuntary manslaughter of a household member was a lesser included offense of murder because it found the defendant failed to show that there was any prejudice in that case the trial court where the defendant and noticed before he instructed the jury that he would get this additional element that he would be subject to punishment based on this additional fact defense agreed to it and still asked for the involuntary manslaughter the court convicted him and  no objection it was never raised until the first time an appeal and defense counsel never articulated what he would have done differently here when robinson did not have any notice until sentencing had never had a class three offense thank you mr chief justice honorable justices of the court counsel this is the state's attorney no money on behalf of the people in this manner the owners this matter comes before this court today because back in two thousand and one this defendant squirters his girlfriend  enjoy jefferson back to his apartment the to engage in sexual intercourse they were interrupted by a phone call this phone call came from another woman this phone call was from someone who defended described to someone who quote wasn't my girlfriend like joy was she was just a girl i messed with and quote joy got very upset by this phone call she grabbed a shark then she went into the bathroom with the shotgun to close the door defendant eventually gets upset and self he demands the shock and back he goes into the bathroom he takes the shotgun from or any ends up shooting her in the face and killing now defendant was charged with first degree murder and one of the things that important to note here about the trial is that all the evidence all the evidence the trial what happened in that apartment that day what the relationship was and what happened in that bathroom especially the one and only occurrence witness in this case was a defendant himself everything that came out mistrial was from defendant's own admission there were no other witnesses in this trial there were of course forensics and autopsy results and whatnot but the one of the only witness in this case was defending himself through his own admissions at the end of trial defendant asked of course the court for a conviction of involuntary manslaughter the trial cour agrees and at sentencing the trial court finds that there is quote overwhelming evidence that the victim in this case was a family or household member and sentences defendants of the class to friends and gives him twelve years now this one thing to note about this case is that is not a novel case the case of people versus davis presents and all relevant ways the same scenario the same situation the same arguments in the same allegations and in fact davis walt on its in its opinion in this court's opinion in davis this court limited its language and limited its discussion to whether or not this route there was prejudice in that case that case is in fact dispositive here and the reason is is because of this court's prior precedent on the same matter subject matter such as this court's decision in people vs all of them something that both parties here cited to say that you cannot be convicted of an on charge the facts and so when this court affirmed the defendant's conviction in david's and even doing so on a limited basis this court in order to reconcile the affirmation of the conviction and davis with its prior court did was look at this court's prior decision in people versus green obviously green is a wholly different case with a different suit rule set up and everything but what the court found the approach court here found was that in green this court's analysis of the robbery statute was very instructive here because the robbery statute and the involuntary manslaughter statute have roughly the same set up they both lay out an offense they both lay out a baseline sentence and then they lay out sentences where  unhandsome and factors are met and this court in green looked at them bought a robbery statute and wide of an argument that there were multiple robbery offenses and rejected that argument said no there's only one offense of robbery and it's obvious from looking at the statute and the made the same analysis here and adopted that announces the involuntary manslaughter statute because there is there's only one involuntary manslaughter statute and defendant asked for it here and it's important to see defendant's entire argument rests on the fact that there are he says to involuntary manslaughter for instance because he concedes i was properly convicted of involuntary manslaughter so defendant needs for there to be to involuntary manslaughter statutes but the way the statutes are set up illinois law there is only one offense of involuntary manslaughter now if this court word of look at look at this case as if there were two involuntary manslaughter statutes the fact remains that defendant received sufficient knowledge of both of any involuntary manslaughter statute that could be prevented presented here and the reason is that when the indictment in this case said that defendant was being charged with the death of george jefferson defendant was given more than sufficient notice that he was being charged with the death of his girlfriend just as the defendant in davis was on notice to being charged with the death of his child so too is the defendant here being on on notice with change charge of the death of a family or household this case gone to a jury in order to get a sentence and in hand certainly the the instructions would have had to have included the additional factor of a household member in the  the conviction was affirmed by this court because it was harmless there and this court again and davis looked back at that and said davis is not an apprentice case because if it was the road would take care of that anyway but the people cited in their brief on page twenty five most likely versus washington it's the united states supreme court case and then addresses something similar because what bleakly said was that the u s supreme court said our president's made clear that  maximum sentence in any given cases and that's an important bit of language because that's what we're talking about here defending is asking that not that is a conviction be overturned but that he got the lesser of two possible sentences so we're talking about really here what is the earlier which is that all the evidence in this case that established the effects or all from defendant's admissions the relationship and the actions that led to her death were all from defendants the mission so under blakely i would argue that no even if the jury did not get the actual and structure an element that says household or family member this defendant could still be convicted under the ruling and now one o additional matter i wanted to point out was that it as this case is also similar to davis it was also a case where prejudice must be shown and the reason is because of this court's line of cases which date back to gilmore and  here just as there is no prejudice and daves and one way to see this of course is to look at this issue and the question is whether or not this is the defendant's girlfriend and there is absolutely no question here whatsoever that this was defendant girlfriend and one way to see this is the look back and say how many times this defendant had a chance to show to tell the court how i could show that this was not my girlfriend there was the sentencing hearing how this was not his girlfriend and how he could say that this was not his girlfriend and the only arguments that the fens ever produced are those which he put into his reply brief on the bottom of page thirteen and on the page fourteen and repeated here today which are well maybe i wouldn't call the mother i would avoid asking the mother about the relationship well that's an empty argument because the people have subpoena power and can call the mother and get her to test defendant argues that while i could try and bar my statements to the nine one one operator as hearsay but again this is an empty argument statements by a defendant are clearly admissible as an exception to hearsay defendant offers up in this reply before i  could cross the officers that first responded to my apartment because i told them also that this was my girlfriend but again defendant doesn't say well what would you be looking for when you promised he was effectively saying i would go on a fishing expedition in this cross examination so again this is an empty argument the only thing that defendant proffers is one but he would not testify but again look at this case what happens is there in this case you have multiple statements thank you and so defendants may say that he would not testify but if defendant did not testify he would not have no way of showing that he did not have the requisite intent here because he had multiple admissions to killing this woman on one videotape and another to the state's attorney now the only other argument defendant present says he presents in his reply brief well maybe i could have shown that this was a casual sexual relationship and a dating relationship but it's important to look at that testimony i pointed out before about this other woman that called it's on page z z two zero six zero the record defendant says that this other woman angel jordan quote wasn't my girlfriend like troy was she was just a girl i mean that's so in defendant's own testimony under oath he swore and said that this other woman was just a girl i mess with but joy it was my girlfriend he made a clear distinction between the one woman as a casual sexual relationship and the other woman as a girlfriend so really the only way to find it can now say that he could show that this was a casual sexual relationship is if that was in fact a lot that's the only way to show so the only offer the only thing the defendant is truly offered in all this time nine times a living in this matter the only time he's ever the only thing he's ever offered as to how this was not his girlfriend clearly when it said there was overwhelming evidence and it's also important to point out that the evidence which established the relationship and davis is the exact same evidence you have here now understandably that was the fenice child in  case but there were no d n a tests and davis there were no physical tests or granny kind of dates the only thing that established that relationship and davis were the admissions of the defendant and the testimony of the defendant obviously just like in davis there is no presence here and also it's important to point out that he made the fact that she was his girlfriend central to his defense he didn't just offer it up out there out of platitudes or something of that sort furthermore this case is a case of invited here defendant a sudden his reply brief and repeated again here today that one of the things he might have done otherwise if he had gotten the notice that he feels that he should have gotten was would be to ask the trial court for a judgment on murder on the case of on the offense of first degree murder well that's exactly what the people want the people ask for that from the time they charge first degree murder through opening through closing through a bottle closing that's all the people asked for and but for his own actions that's exactly what defined it would have gotten so this is clearly a case of invited here because this one  right to make that decision based on knowing what he will be subject to if he does has for the lesser offense it would have been a totally reasonable strategy for him in this case t to make a fully informed decision when he was engaging in that strategic decision and as to all the facts that were listed at trial concerning her status as a girlfriend we don't look at the facts as they come out at trial and determine whether something is or is not a lesser included offense because obviously they can't contest that after the fact at the time of sentencing at that time it's too late t argued whether this qualified under the statute as a household member always a strategic decision for removed from him so we're fact that evidence came out at trial that he was the additional fact that the deceiving her the victim was over the age of sixty was charged defendant had notice of it it was presented to a jury and proven beyond a reasonable doubt the only place where i was missing was in the verdict form  and so the fact that probably in the printed form is the same offense as a robbery over of the person over the age of sixty as it's identified in the indictment and as it had been submitted to a jury here you have much more fundamental principles a state where he never even received notice of this additional fact there's nothing in the statute and this is why it has to be a separate offense nothing in the statute  look at the statute and the defendant be able to figure out the state's ten intent the statute doesn't a proper price well you're right it's the end of whether the state intends to seek an enhanced defense so he's going to decide whether to ask for minimize the importance of his decision to ask for a lesser offense of involuntary manslaughter when you have a difference of a range of two to five years which is what he was convicted of and then all of a sudden sentencing the first time a sentencing range of three to four fourteen years and he never had any opportunity to defend against that to argue to a jury or to say i'm going for outright acquittal which was a decision that really does belong to the defendant whether he had a good chance of the quo or not that is his decision which he did not have an opportunity to make it a fully informed nature in this case if there are no other questions thank you for your time and asked that you reduce his offense to number one zero two zero six people versus william robinson will be taken under advi