good morning your honor is my name is phil payne i represent valentino born and i hope that my argument will be no longer than ten or twelve minutes good good good morning honest this isn't state's attorney john walters represent the people state of illinois and i copy of that case counsel called me this morning he faxed over copy this morning i regret to say it isn't enough time for me to fully engage in and analyze the case but counsel did make me aware of the case this mor so do you feel comfortable arguing because this court is inclined to do we need to file are you prepared to you're not prepared to respond to it i would respectfully request the opportunity of responding writing to to the motion ok how much time do you  good morning your honor is made please the court as i said my name is phil payne i'm from the office of the state of the defender on behalf of valentino wilson now mr world one has presented two issues for this court for view both of them concern the elevation of his classification the elevation not just of the length of his sentence but of the classification of it it is offense it imitate implicates his substantial rights and is revealed on a plane air but read makes it very clear the defendant must  through closely balanced or through the substantial rights test the defendant must preserve it but do you mean complete your argument in your proof yes we make a plan or argument in both our opening thief and our supplemental those errors qualified as clean air so with respect to the notice provision this case really involves whether section one eleven d'esprit see the notice provision  applies to the unlawful use of a weapon by a felon statute let's take a look at the language of that statute that statute says that if the state wishes to use a prior conviction as the sole basis to enhance the scene the legislature was very clear in what an enhanced sentence meant and if i may read section one eleven says for purposes of this section and hence sentence means a sentence which is increased by a prior that charge was based on but it did not give notice that the state intended to seek an enhanced sentence that was a requirement under the notice provision so that means that the state was limited to pursuing a class three conviction which was probation of all against mr will now until sentencing to the state demonstrate a desire to see better hand sentence and because that notice came too late the violation under hansen that happens in these this situation the state is still required to meet the notice requirement under the sentencing under the notice rivers and because it didn't set out in the charging instrument and the state couldn't convict mr the court couldn't impose a class to sentence on the defendant the same logic the same reasoning the same rule applies in this case now the state wishes to use people versus that requirement but it didn't do is put defendant i notice that the state wouldn't intend to seek the enhanced sentence and that's specifically laid out as a requirement eight that under mandatory language shall language in   with respect to this with respect to the issue of prejudice i just want to touch on this briefly there was nothing defective per se about this ind laid out a perfectly fine charge for unlawful use of a weapon by a felon but it was a class three indictment but it wasn't was an indictment that would make the defendant susceptible to a class to conviction so there's nothing about this indictment it simply limited the state to pursuing a class three conviction based for u w someone against mr coburn rather than seeking the sentencing enhanced meant to elevate him to a class to same erroneous conception of the law as the state and the and the court that this was the proper elevation of the of the classification offense that that could be made just at sentencing everyone missed the boat on this notice requirement not just the defense but the state did in failing to notify mr will warn in the indictment so it in the boat as easily as the boat i'm sorry easley's the boat easily is the boat we eliminate the boat and frankly  notice provision that has been on the books for a long time and clearly lays out the notice requirement that applies in this case it's the boat i would submit that that statute is the boat and its application in this case is crystal clear so unless there are any further questions i will say a few minutes for a bottle thank you may please the court the important news that this court is to be brought up to speed upon is that the case of people versus easily the pilatus actually granted this morning by the illinois supreme court so that renders the issues that are before this court there actually you first of all this is you don't you buy a foul that prior conviction is an element necessary elements of the crime there's absolutely no doubt under the law that that's a fact and knowing that knowing that let's look at section one eleven three because this statute absolutely answers the question in this case you know sometimes there's an easier answer to the gordian knot than trying to stand there and try to unravel it sometimes there's an easier solution  know we have to do is look at the plain language if you look at the plain language of section eleven three we look at section eight a is a section that's a political to switch to the elements of the crime and it states what what must be spelled out in the information in this case as to the elements of the crime the prior felony in this case was an element of the crime and there's no question i it's cited in the brief before you and you have the you have the information the common law record there's no question that that  elements that necessary element is charged in this case now let's turn to one of the three seat this case this this section is absolutely in a political how do we know that when we could look at the first sentence and in the first  if you don't have a funny view because this is the absolute decide the case however a factor such prior conviction in the state's intention to seek an enhanced sentence are not elements of the fence  prior cases other than other than weasely i'm sorry weasely other than easily and whale decided by the same court other than those two cases the only other cases a defendant cited to you are classic sentencing cases makes perfect sense in the classic sentencing situation but prior convictions are not only to the crime they wouldn't qualify under under one eleven three any because because they're not elements of the crime the defense will be put the question is whether it's legal or not you can give that no that's the question well at least you can say that in a political so you don't have to give it but i would argue i would argue that under the circumstances under the circumstances it could be said that we did give the how it is because we gave not only did we give the name of the prior conviction we spelled out the forcible felony nature of the prior conviction so counselor so the defense was put on notice not only that they were also means something that means also means in addition to he would have agreed so that there has to be the how do you read that sentence with your sentence how do you reconcile those two because if if if we follow what you're saying it seems to me that you're saying that the word also a shell also has little or any now meaning of all i know you're what i'm what i'm saying is that looking at the legislative intent of this statute as a whole interpret ing the statute as a whole i wouldn't say that it has no meaning but i would say that you have to look at one eleven three see what the statute what the legislative intent is and you have to look at as well it one eleven three eight which is what i will use here but we can read out were not you know it would make any sense to give something and then they take everything away the however clause maybe the however clause means something different that what you're say one of a dozen of them that i'm trying to understand what the proceedings  me i think again looking at the looking at the statute as a whole this one the other three seat notwithstanding this show also language i mean what are you running into then is a train wreck if you go ahead on collision with the this is these are not elements of the crime if you read that to interpret that to mean all situations where anything qualifies as a hands has to be charged that it runs right into the train wreck so rather than create it and unnecessary collision in this case what i'm suggesting to your honor's is that the more logical approach is to look at one rather than three a that applies specifically to the elements of the crime this is an element of the crime it didn't comply with one eleven three a and that one of the three  as you know exclusively but i think i think it's a clear intent to deal with a situation where the only to be enhancing element is not an element of the crime so what do we do then how do we give a defense notice in that case then that's that's why i want to let the three see was dash one point one was cited and the defendant was actually put on notice as to what the prior conviction was going to be this is this is my point in the classic sentencing situation the defendant without one of the three c is left without any knowledge at all of what's coming and that's why the general assembly crafted one eleven three c that's why all these other cases the defendant cites you like owens and chaney and angry hom all these other cases are classic sentencing cases and they're a perfect example of why one of the three see was created obviously didn't analyze the second sentence of one eleven three c it's not it's not anywhere in the discussion of those two cases they obviously overlooked if it happens we're all human i'm not trying to pick on them it's the same court that decided both cases i'm not trying to pick on them we're all human but they overlooked it and that's something that the only supreme court is definitely going to have to look at when they when you look at a statute you've got to look at the whole darn thing you can't just take one sentence and forget about the rest of  it's a little bit more esoteric than that it's not an explicit discussion of one of the three c in some ways easily falls pall with respect to the first issue the defendant brought up easily fo pop with respect to the issue though of whether something qualifies as an enhanced sentence hol had a certain understanding of how the u w by felon statute fits in with enhanced sentences and under powell the reasoning of powell was that it is it does not qualify as an enhanced sentence first of all if we look at jackson there's no enhancement really because this isn't this isn't like aggravated you w there's a major distinction between aggravated u w w and it goes back to the first thing i set in by felon the prior conviction is a necessary element of the facts yes to be proved right away that's not the case with aggravated not the case with a lot of other fences so  be by fallen is not an enhanced version of you straight you w there are separate distinct offense it's as explained by the court and people versus jackson now people versus powell came along and it said there's no double enhanced men and we don't really follow the logic of jackson is really it's really not an enhanced sentence situation now again the power cord didn't i don't think specifically looked at the with with the idea of whether this was an enhanced sentence or not the powell policy the implication is that it's not an enhanced sense in fact that they come right out and say the prior conviction simply differentiates between the two this district and in the state until unless and until the court the high court over rules that with respect to power usually nowhere in the in the easily decision does that mean that court disavowed the reasoning of powell actually what  does it synthesizes the reasoning of powell and its rejection of the infamous the double hanson argument with the notion that the notice requirement still applies to cases like this one if you read easily that's exactly what it says doesn't find any conflict between how the reasoning and the application of the notice requirement in this kind of case  the state points to the second line of the notice provision as proof that the nose provision doesn't apply in this case but first i want to point out that usually in wayland which are still good law come to an opposite an opposite conclusion one eleven s t c does apply to a case like this second and perhaps more importantly i agree with the state that a prior conviction is a an essential element of the offense of unlawful use of a weapon felon and the state did in this case properly plead that mr wellborn had a prior conviction what it didn't do is give notice that it would seek the enhancement under the sentencing portion of the u w felon statute in order to elevate him from the class three version of that offense up to the enhanced and enhanced version of class two the language of the use of you statute that elevates his conviction or yes this classification of offense is in the sentencing does the statute go on and say that a prior forcible felony can elevated defendants conviction from the class three to the class two level of offense that means that in order to pursue that  that that is it appears in the sentencing portion of that statute the state had to give notice that it was using that prior conviction not only as a essential element of offense but also as an enhancement factor to boost his conviction level and at that point out that if the state is the state is basically saying that the second sentence of section one eleven desh three c means that it doesn't apply well that would seem to conflict with the notion that this isn't a double