the first case i recall of the docket today on was the november two thousand and ten is case number one zero zero eight nine people versus linda lindsay agenda number six council are you prepared be changed as requiring in every instance but a defendant file a new post judgment motion following a remailer and resulting from defense counsel's initial failure to file a rule six zero four two certificate but alternatively because defendant had a full and fair second opportunity to present his arguments for reconsideration the appellate court erred by remaining this case for a third hearing on defendant's motion therefore the people respectfully request that this rule because when the case is remanded following noncompliance with the certification requirement the remember seedings must comply with the rule rule six zero four d outlines the following procedure first a defendant either pro s play or sentence to that she has examined both the trial court file and the report of proceedings of the police hearing and three that she has made any moments sorry amendments to the motion necessary for the adequate presentation of any defects in the proceedings if no amendments are necessary and there is no need to file an amended motion because presumably counsel in her judgment believes that the already filed motion contains all the facts so when a case is remanded for no consulting with him review the proceedings including the trial court file containing the original motion to reconsider sentence and then determine whether your whether any amendments to the motion are necessary to adequately present the defects in the proceedings james created a mandatory rule requiring in every instance regardless of whether the facts justify it but it depended fairly new most post judgment motion against created no such rule as an initial matter the people are not seeking to overrule people be changed as defendant contends rather we submit that the appellate court here misinterpreted people reaching and we expressly rely upon the language and context of chains in support of our position but a new motion is not required on indeed defendants rating of jayne's disregards the remained instructions of that case which use permissive language allowing a defendant to file a new motion but not mandating may do so that that promise a remedy found in the  instructions is consistent with the appellate court cases cited and approved in jane's itself those appellate courts used permissive language as well or they remain ended strictly for a new hearing on the motion and that found in the freemen instructions is also consistent with the context in which the court decided people who james james didn't address the more precise issue presented here which is whether a new motion is required forty rather change address the broader question of what the remedy should be for noncompliance with the certification requirement so that jaynes considered three different ways that the appellate courts have decided the issue to just miss the appeal outright and leave the post conviction hearing act as defendants sold by many to determine whether there was substantial compliance on the record such that any error in failing to file the certificate was harmless or three to itself itself protects the defendant's rights because when counsel files a certificate she has consulted with the defendant to ascertain his contentions of air she has examine the proceedings including the trial court file which includes the original motion to reconsider sentence along with the plea hearing transcript and then she determines she makes that actually makes a judgment as to whether a new motion is required if certain things have occurred in the interim then counsel would make a judgment and decide that she should file a new motion to adequately present defendants contentions of air but if there were if there is known if there is nothing to add to the nothing would be gained by requiring counsel to file a new motion because she was simply every day to reprint this promise or rule is also consistent with the procedure contemplate by rule six of forty that we already discussed and it fulfills the purposes of that rule henri man with the motion to reconsider on file trial court appoints counsel counsel consult with the defendant examines the proceedings and determines whether the already filed a motion adequately presents all defects as stated if not then counsel about a new motion but if so counsel about certificate the trial court event must hold a new hearing on the motion the trial court when it's done considering the the motion to reconsider has the motion and certificate in front of it showing the court that counsel is presented all the facts in the proceedings and creating a record for appeal fulfilling the purposes of rule six forty and protecting the defend rights is important to emphasize that the filing of the certificate on along with the new hearing protects the defendant's rights to have the assistance of counsel in the preparation presentation of the motion because a certificate  written motion that counsel brings before the court adequately presents all contentions of error after discussion with the defendant and a review of the proceedings and the hearing ensures that the court considers the motion and you therefore requiring a new motion in these circumstances would add a stop not contemplated by rule six so forty would provide defendant no additional protection and would ask for the performance of a meaningless act wasting valuable resources and contravening rule six so for these purposes surely to this case defendant here just doesn't surely receive the full benefit of people who janes when the court initially the man does it every minute for a new hearing and the defendant filed received a full and fair opportunity to present his arguments for sentence for consideration noted it had reviewed the original motion to reconsider counsel's prior arguments the court file the transcripts from the prior proceedings the pre sentence report which included defendants letter expressing his efforts addressing his substance abuse problem and it also looked at counsel six zero forty seven only then to the court and to a new ruling denying the motion explaining directly to the defendant to his sentence was generous fourteen years on a statutory minimum of twelve but that's nonsense was generous in light of the allegations importantly defendant was present at the hearing and never protested that council did not perform her duties and he didn't add any additional arguments so that's allowed to fight to the fed to be allowed to have a new hearing the motion and three defendant's attorney comply with rule six zero four d so this run did not go back that those three according to the plain language of that we're there yet so on remand the defendant would be allowed to file a motion to wouldn't have to do but then it also says the defendant would be allowed to have a new hearing on that motion and that would also be permissive but that would be contrary to this court's holding in people forty i believe it references the certification requirements but i think it also means that you have to comply with the procedure outlined in rule six of forty which was that during the proceedings back to after the motion was filed and when counsel's appointed and then the counsel and then counsel would consult with the defendant ascertain his contentions of errors examine the proceedings determine whether amendments are necessary and then file the certificate and then according to the rule the trial court without heavy hearing on the motion motion to reconsider sentence and a new hearing on the motion this requirement is simple straightforward and workable in this courtroom yes on the other hand immediately prior to the sentence that you just read guilty plea and the right to have a new hearing on the motion and it seems like oliver tell me where i'm wrong in this it seems like oliver latched on the first of the sentences and while kercher a unlatched on the second and  i'm not saying one is wrong or one one is right but in people versus surely this court stated that in james we held that quote in the absence of strict compliance with six of forty the appropriate remedy is to remain  in the more permissive language than the mandatory language which both is contained in the change case so my question is kind of a practical one practical one doesn't mandating a new motion isn't that simply an empty and unnecessary unnecessary formality not to mention the waste of time and judicial resources absolutely not in fact requiring counsel to pile a motion promotes the purposes of rule six zero four d which are to protect a guilty plea defendant's right to due process and to end his right to effective assistance of coun there really is nothing that we didn't have argument on the motion at the time and i really don't have anything to add to that the court is aware of what was argued at the time so the money complies with six of the forty looks at everything and says that's exactly what i would have filed where how is that not an empty formality to require the same motion to be filed the same arguments to be here again our interpretation of jayne's is that the new motion must be filed and a new hearing must be filed now before you can have the hit the whole point of genes is that the first post plea hearing was fundamentally flawed we can't trust that proceeding because there was no six of four d s or to think it we don't have any insurance that when that after that motion was filed the attorney took the steps necessary to make sure that all the issues were preserved and that she consulted with the client and that everything was made on the record and so when this case goes back for a second re manned we can't everything has to happen all over again because we have no confidence in those first proceedings so when counsel says you know there's there's nothing to add understand what the harm is ha and then stands on the original motion and says we stand on the erg humans that were made before we looked at all of this i would be filing the exact same motion i would be making the exact same arguments after stating that it reviewed the file the it said the p s i i report was look there they reviewed the proceedings from the original hearing and defendant's motion to reconsider and the motion was the night have a perfect example of the same result would have been had we gardeners if it was mandatory or problems again i don't believe so because we also have to look in this case what motion was actually filed and it was simply a boiler plate motion of three paragraphs the first to ask this would you have the same problem if the attorney goes back files and six zero fort i think under james's mandatory language that that seems to be appropriate because that's a new motion accompanied by a new six zero four new certificate and then followed by a new hearing and that seemed that would seem  in this case we when we do take a look at that old motion that all motion is boilerplate the only sentence that refers to the sentence is i believe quote the sentence was excessive now that's that's what counsel's going to stand on that that adequately that really adequately represent or present to found defense and a claim of error again if if counsel followed jayne's and found that same motion maybe we have a different here a different issue here whether that motion was in fact adequately adequately presented defendants claim of claims of error but the issue here is whether or not would in which counsel would attest to her duties that she consults with client review the file and the actual physical manifestation of of her duties is a motion it's the actual motion that preserves the errors it's not counsel certificate and without a motion we can't have a hearing and i think that i think the language in jane's you know this idea of there being mandatory and also permissive that that permissive language used in the relief paragraph really has to do with the scope of what's supposed to happen that based on the language in jane's there is a mandatory requirement that counsel file a new motion and it makes sense because of the rights that we are trying to safeguard went  to a guilty plea defendant wants to challenge his plea or his sentence no let me be clear but you said that it would be sufficient if if they filed the same mo again under jane's it would be sufficient for complying with a remained order but then we'd have to take a look at the motion and decide whether or not that motion appropriately laid out preserve i don't have anything to add i mean what if you you know you can counsel can't make up things right i mean if the if the first motion set forth all the all the claims that the  had what else are they going to say right and and i'm not making up this site which the language is in jeans and that's what we're basing our work and i do seem to be saying that and this is confusing it seems to me you know response to just time she said that would be it would be ok if they filed the same motion again right because now you're telling me that if there is more than that you have to look at the sufficiency of the motion and whether there were any certificate and that such a picket assures us that the attorney adequately improperly presented any errors that defendant wanted to raise in that motion now that's one question ok whether or not there was a motion filed and remained now a second motion and the second issue would be well let's take a look and see if that motion and what happened at the proceedings whether those are totally different we have you know presumably if a count if counsel can stand on the pro se motion in the first go round of posts we perceive things and she files a certificate stating  all over we can't there's almost an implicit distrust in what happened in that in those proceedings change on them fundamentally flawed but isn't the important thing that the council has consulted with the defendant to determine w what the defense allegations of error are and that they have presented those to the court and whatever for right that's part of it but the other part is the actual presentation of those errors that's what preserves the record so we have the motions or the vehicle for which how to present the errors the attorney certificate is making sure that counsel took the steps necessary to get to that point so again i don't i don't believe it's an empty formality it's actually requiring counsel to execute their duties under the rule but under that scenario it's in the wel we have the assurance that counsel didn't talk to the client and did review the record and checked over that motion and decided that that was enough and that's ok but when we have a green man where counsel didn't perform those jews in the first instance we have to require counsel then to now don't perform those duties but make sure that that new motion is before the judge to reconsider totally what was raised and then you new claims that could be raised at that point so again i don't think it's time to formality and again i'm not making through a lot i believe it's in the genes i think that's what jane says and again that the idea that there was mandatory language in permissive language the permissive language is found in the relief paragraph and i mean once this month the case comes to this court and it goes back three mand you know the parties can't do anything without the permission of this court and that's exactly what james was telling them that when it goes back  what you do you file a motion and you have a new hearing and as far as the notion that be allowed is permissive language then why is it used when describing what's supposed to happen with hearing be allowed to have a new hearing or supposed to have a new hearing that's mandated so why would permissive language be used permissible in one instance but mandatorily and when we're talking about a hearing is it fair to say that if we disagree with your understanding of that one sentence and james you don't have a case there's here you have a defendant who got fourteen years out of a twelve to fifteen council saying there's nothing new in the sentence ok i can't argue anything more in the trial court indicated considerable relevant factors so is in your argument premised on the one reverse chains then yes we're we're in trouble in that regard but procedurally speaking if it goes back then to the appellate court for further briefing on any other issues since this was basically a threshold issue then you know it's possible that we look at that boilerplate motion and we decide whether or not you know we want to argue that that sufficiently or adequately presented defendant's claims of errors with regard to sentencing and all you say is such as was excessive is that really enough to preserve an issue i don't think so but again that's an issue that may come up later may not but this council is faced with getting fourteen years on a twelve year considered excessive if the facts are such that that merit that argument so the fact that it's just two years over the minimum i don't think is we can just get a courtly rejecting excessiveness argument and there was evidence here that the defendant mr lindsay had two prior drug offenses but he never had been to the department of corrections before that on probation for these cases he was clean and sober and it wasn't until that he had a back injury that he sort of relapsed and got back into his old ways that his time spent in jail was productive being a part of treatment groups in the just program at the county jail so there were mitigating  issues and the defense attorney i think mentioned one of them at the motion to reconsider but again made no effort to re argue any of these  six of four do that seem straightforward and this court's language in james woods again we believe is straight forward defense attorneys states trance even judges are having a hard time following these rules and effective difference between the mandatory and permissive language i think they both require the same thing even though it's permissive language i think it's used in the sense of what the scope of or a man is supposed to be and not hearing on a new motion then because a new hearing is not just permitted put in fact required then we would i think i would make that same argument i see my time is up i appreciate th defendant here seems to be challenging the substance of the motion that was initially filed but she's never challenged that before it is clear that the certificate itself relates to the motion when counsel thousand certificate and then presents the motion to the court at the hearing she is presenting the written motion that's already on file so if this if the motion is somehow defective then that would be something that counsel could bring up on appeal as asserting perhaps that counsel was ineffective in not adequately presenting everything in the actual motion but that's not the same thing as when the when counsel believes in her judgment that she has presented all the facts in the proceedings the remain instructions for clear counsel seems to think that because it said the right to a new motion and then the right to a new hearing that means that both are mandatory but the problem is all of this needs to be considered in the context of the give me one minute your hono quite thoroughly examine the record before denying the motion to put it was present at the remained hearing on the motion and the record showed that the defendant had open line of communication with counsel but even if this court works find that it's forfeited it should exercise supervisory powers to review it because it's an important question between ninety and ninety five percent of cases are disposed of by guilty pleas and people be well this court notice that a third of all appeals come from guilty pleas and most importantly the question of whether all six zero forty required a new motion is inextricably intertwined with the question of whether the failure to do so many its reversal and finally counsel tried to distinguish surely but in surely it was actually a lot more gracious problem because the trial court considered the motion and surely without the benefit of a rule six zero forty certificate because a certificate itself wasn't filed until after the hearing on the motion so counsel sort of the trial court had no assurance that counsel had complied with the certification requirements