morning morning this county before you get up we would like to ask you to make sure in your discussion today to speak to at least two things first your position with possession of or use a gun and that the defendant be a felon in the state of illinois or in any other jurisdiction in this case the prior offense used by the state to sustain mr holloway's you w f conviction with a class for aggravated granted this case of a little bit of a different twist to it but i just wanted to acknowledge that the procedural posture here is different any of the other cases that we've seen and we would acknowledge that we believe that the case that therefore the state is stale than its burden to prove beyond a reasonable doubt the offense of you day by fellow because they can't prove an element so that the basis of your claim that's how it was argued and again  on the basis of your claim i mean to just kind of expand a little bit on what just right just alluded to if that's the basis of your claim that the basis of your claim is that the state can't prove or couldn't prove to i was a prior felony before again in the charge against him and that's what that's how i'm going to go into the record on right now we have the record for the twenty twelve  park now i'm not sure whether education has ever been explored and whether or not the second amendment allows individuals to have guns  playgrounds but there's certainly an argument to be made that we don't want guns in schools so i'm not sure yet whether the constitution pro techs individuals from going into parks with guns were children play and having this second amendment right to carry that gun whenever and wherever we please but my point is is that there are is in the brain isn't that you've given us that you've given us the indictment and nothing more now i don't know whether that predicate felony everything in a bench trial and the court simply merged everything except the aggravated so i don't know really at this point based on this record what do you what do you say that well the first response i have to that is that you know why you make very good point the state never argue back and their briefs and again when he's stressing you know based on the point adam nissho doctrine just like you don't have any proof of the other convictions there's no proof the other way or that the state you know did there are some other charges that would satisfy the buy a felony element but all the other cases  so i think there is a difference i mean i don't think the procedural posture is the same and in claxton they have no fields and i think there's some other rule twenty three s this court said that we can't really ignore the predicate felony but at the same time we don't have the authority to go and re basis i mean i don't know if there there's there's p l a petitions pending on others i'm not unfortunately sure of that but like i said we don't think you know even with a procedural posture we just again the state ever argued that in their brief so i don't think that you know that pulls out the possibility entirely but we do acknowledge that you know based on the record there is no information at far as the specific his plea which leads me to the next issue that you asked me to address i think are we may i would be appropriate and then that can be explored at this time i'm not entirely comfortable even though based on the acknowledgement because again we don't know either way you know just yet that's the your primary argument is that this we didn't really hit out well there was that knowledge of what he actually said that would be if he were to not agree with whatever conference and for further to the understanding that came out of the was there court then accepted the plea of guilty so prior to that acceptance there was no indication that if he did not swear to the facts alleged by the state that he would be then subject to a seven year term of imprisonment and that's a big a big difference between boot camp on page thirty seven mr holloway indicated he understood he would have to swear under oath to facts given to him by the state's attorney and may have to answer some questions when you move on the page the fifteen defense counsel then says wow i thought he complied because the factual basis of the forward to conference dealt with a statement that mr holloway made after being arrested and after being mirandized the state didn't ask him any questions about that and there was no indication that mr holloway you know did he understand that he was just testified truthfully and that his own part was he to testify and and finger someone from the state was he to testify and give them information about a specific codefendant that just doesn't come through on the record we don't know either way and failed to be was designed to prevent exactly this type of misunderstanding that occurred in this case  there's just too much ambiguity on the record to say for sure whether mr holloway knew again the full terms of the plea condition if he testified truthfully and apparently great information about mr garcia that he no affirmative duty on the defendant to advise counsel any problems the language and six zero four d's pacifically states the counsel is required to make any amendments to the motion necessary for adequate presentation of any defects and those proceedings any defects in those proceedings whether mr holloway advised him or not was again you know with the responsibility of defense counsel and again defense counsel stating on page fifteen mr holloway had complied and based on the fact that apparently there had been discussions in or two conferences again there's just too much ambiguity we don't we cannot be certain that mr holloway was advised of the full terms of the plea agreement on well my first response to that is first the state had the unbridled opportunity to question mr holloway so if there was something specific and it's again defense counsel referred to the statement that he made after he had been randomized in the state could have asked about that and they did and then you know also here criminal procedure point and i'm guilty pleas are not necessarily co defendants or someone else that could be involved and you know when you plead guilty that's accepting responsibility for actions that you say that you're taking mr holloway swore an oath to testify truthfully and according to him he did that by acknowledging his role in this offense so if there was something specific that the state was hoping to get out of his testimony and which very well may have been discussed in the four zero two conference which again we have no knowledge of because it was hauled off the record then they have the opportunity to either ask him that to relive one thing the record shows that the defense attorney stated i explained to the office but it's not specific enough counsel explained the offer but why didn't he elaborate on what that offer was and especially if mr holloway was not up for zero two conferences then defense counsel could have thought that the offer was one thing when in fact it was something else so again we would argue that this is why go for it to be requires that the specific plea agreement be stated on the record not that counsel just say that he explained the offer and again in the part where he says that mr holloway would have to swear under oath to facts given to him by the state's attorney and may have to answer some questions again that's very general we would argue so there needed to there is no suggestion in the record that was supplied by mr holloway that when the state charged him in twenty well that they charged him with you w they are the only charged with aggravated unlawful sentenced and for both that two thousand weapon possession of a controlled substance on the same date as that two thousand twelve aggravated u w that is perhaps why he had not yet been convicted of p c s at the time of that two thousand and twelve and that's why number of other world twenty three's which we are not allowed to go into in those cases which are procedurally different that there is an argument where the conduct that was relevant to that first status and subsequently been held to be constitutionally protected as to illinois statute or not none of those federal circuits dealt with illinois convictions right but beginning with lewis in the united states supreme court that had to do with a constitutionally infirm predicate conviction that defendant had been convicted without form holes that because the i'm ducked that was the basis of the conviction was constitutionally protected that that person should still be held accountable or underlying felony was void have an issue absolutely not ok and so when you enter a plea of guilty don't you don't doesn't it plead guilty you have to be knowingly and intelligently made and don't you have to have an idea of what the evidence is that the state can use against you yes can't the argument be made that there's no way for mr holloway to have understood the evidence that was marshaled against him if he didn't understand it is on there like tony couldn't be used against he knew that he knew he was a convicted felon on that day well yes and that just that goes do you think the answer to your question is he only knew well he knew i was a felon on september twenty fourth two thousand  but not there isn't one case in there where before taking the plea he was promised one thing and then after the plea he got three years more or a different status and that's had been this discussion or the exceptions of the guilty plea if the court had and it's the court's job it's not the state's attorney's office it's not the defense attorney's obligation to it's for everybody's benefit including us now to know that when he entered the plate that he was fully aware that if he didn't do exactly what he was supposed to do if he was facing it should come after the fact that's not what the rule impatience and i don't i just think there's a problem with this plea because the judge didn't do what the rule says i don't think there was substantial compliance when he didn't intelligent if for me and you don't have something on the record that says it's for if you do everything we want and it is it look ate the code at that and if you really feel worse if you don't answer the says i want to plead guilty and then he goes through all the other nations about all the rights that he's waving in order to plead guilty and he says he understands that but he still hasn't accepted the plea and entered the p guilty before the time that they have this session where he's sworn in and they ask questions about what happened i'm the one day the defense and so he testifies the way he then you know he's going the wrong way on this at least during the state and efter all their testimony it wasn't until after all the testimony that the judge you know says  the penitentiary and away from the boot camp don't you think it's incumbent upon the judge before he excepts the plea and and here's the and here's the you know the finding of guilt in the judgment of guilt to say well open i think just by looking at it that it has already pled guilty and has buyer's remorse he said he would testify consistent certain representations made the four to those representations were consistent with what is befor defendant according to the lawyer he called him within twenty years he said i'm i mean ok so he makes a mistake in that he didn't it bit apparently everything that the state wanted him to and get on record they comes back to take a plea he apologized profusely and says he's made a mockery of the court and he's willing ready and able what he should have done was not you know the answer brown either someone else gave him but it you know if you break the record it was pretty vague about what he was supposed to do i mean i just think how can you have buyer's remorse if you don't know what you're buying in this case they repeatedly acknowledge that the statements the thinks were never made on the record and the fact that you know there's multiple write one says while defense counsel said this at a later date at the motion to  it all these other hearings well of course defense counsel mentioned that the court cleared it up after the police had been accepted but again for it to be requires that the plea be stated in its entirety on the record that did not occur in this case and as far as prejudice mr holloway would agree with the court that the difference between four and seven years is a great difference it's not as if we're saying well mr holloway was told that he would get four years and got four years in a day it's a substantial difference and the case cited but again all of the cases are distinguishable because there was no compliance with rule four to be his mandate and even if we you know agree that only substantial compliance is required that didn't occur in th that there really weren't any cases where you had this suggestion that the defendant was offered a certain time and then if it was complaining about appeal that he got something he wasn't offer that's what makes this case a little different but really has been rejected or this position that the failure to not  of what he actually was agreeing to until the court specifically said that it following the testimony and again that's higher than with six o four d m in the state's argument they place a lot of responsibility on mr holloway while he never mentioned that you know he was just that aside for this reason he never alerted defense counsel and mediately when he could have but six afford to require strict compliance and again there is not an affirmative burden placed on mr holloway to point out what he sees  such defense counsel to state anything any errors that may have occurred in the record so that they can give the trial court the opportunity to correct those errors at that time this was a glaring error and it was not listed in we would argue that granting relief on that issue would be the best course of action in this case it's opposed to some outright force because of his previous conviction really yes based on the to delve into that issue as to yes larry should yes based on the fact that it we believe it would need some looking into yes because as i are going to bring my opening while we don't know