ts two depending on the type of that prior felony conviction that's used as an element a defense this case is as simple as reading the charge and then reading the statute the indictment in this case charge the possible classes of offense and sentences it states that a violation of this section by a person not confined to people in situations will be a class three felony which the persons will be sentenced to no less than two years in prison or technical to ten years in prison and then goes on and says that any second or subsequent violation shall be a class two thousand and eight which that person shall be sentenced to a term of imprisonment of not less than three years and not more than fourteen years anyone who reads  been violated something for the nature of the elements of the offense charged and seeing the date and county the offense in stating the name of the accused missing from that list of what's required is stating the classic offense in any criminal case the defendant is only sees the indictment only the elements charge and what has been this actually filed in this particular case however it assumes that the defendants knows that section five twenty four dash one point one requires a subsequent in this indictment the indictment states how the state's going to prove that element of the offense that prior felony conviction that makes this you got you by a felony and this indictment lists his prior by phone conviction the only way that this defend legally possible for a repeat u w by a felon offender to receive a class through the statute makes that claim and that's following from this this court's reasoning in white that when a defendant is charged in this proved it in trial certain facts and only one type of class of a sentence is possible then that's the only class there's simply no answer he was not possible it was not possible for this defendant as charged to receive a class three sentence  offender it reached that conclusion by a room easily believing that section one eleven dash three c of the code of criminal procedure applied to the charge of u w by a felon as charged in this case dash three see only applies when the state seeks to use a prior conviction that is not an element of the offense to enhance from one class to a higher class it applies in every single the only case where that prior conviction is not an element it applies in those other cases the vast majority of other cases because otherwise when the defendant reads the charge in the indictment or in the information he will come to a conclusion believing he's facing only a lower class of offense because that's what the elements charge and it's only by giving notice under one more than three see that this extra element to all prior conviction something that's not an element of the current offense is going to be used are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such a trial because it is true of course one lawful use  the prior conviction here is an element of the offense and it must be disclosed to prove to trial fact if the legislature intended one a level three c to apply even when the prior conviction is required element and only one class of offenses possible while the charge it would have said so here it didn't apply because that prior u w by their own conviction was included in this charge as an element offense in the offens but even arguing again though that if this was a double enhanced it was proper because the statute could not have been clear the statute says any second or subsequent violation shall be apply when that prior conviction is an element of the offense and only one class expense is possible is charged for these reasons and those are not briefs we ask this court reversed the decision of the appellate court in a firm defendant's class to conviction  expressed first in the plain language of one eleven c three the notice stance you this you and second of the longstanding prohibition of double in the incidents except where they have been specifically permitted by the legislature first on the issue of notice on which mr easily prevailed below the general assembly has created a policy of notice to give defendants a right to notice and a chance to make intelligent decisions throughout proceedings the censure is clear and what it requires language of the standard to define the legislature's intent but to the extent that there is any ambiguity you can look to what the what the legislator said about this and debate the house sponsor said that this bill clarifies the procedure that should be set forth and charging documents to specify what that the defendant is entitle his words to be placed on notice when the prosecutor seeks enhanced sentence because of a previous conviction he went on to say that the bill clarifies the law provides fairness to defendants to put them on  notice at the time they're being charged he went on to explain that the bill has to do with cases where the saints attorney has charge someone with an upgraded offense as a result of a prior conviction for the same offense it spoke of a right to notice and where you look at this course prior opinion in jamieson dealing with this in another context this court said to the general notice provision was needed to require that the state notify the definitive in all cases tallackson original your honor so tell us where it intends to charge the defendant with a higher classification of offense based on infants prior convictions for that same offense so it would seem pretty clear said that wouldn't comply with the statute where you are as i think the case that we moved aside additional forty last week prior put it pretty plainly the statute requires two things it's a bo more necessary to state this intention to seek an enhanced sentence because there was another reason for this to be in there a perfectly good reason and that is that the state couldn't prove this offense without having a prior conviction as an element you w by a felony  i'd i don't think so first of all we obviously don't agree with his position that this is the only sense that he can get it back we believe that this sentence is prohibited based on the way this was charged and i'm glad that counsel was a bench trial instead of a jury trial so all of this seemed to happen at once in a jury trial situation you would have a situation where the state is proving its case and the jury is asked to pass on whether there has been a finding of guilt based on any prior conviction any prior conviction will do for the purposes of the first part of that stance you which pro prohibits unlawful use of a weapon by a felon but if the state charges those prior being a prior use of felon doesn't have to prove that to the trier of fact you are it has to prove the fact of a prior conviction but not the nature of the prior conviction the nature of the prior conviction is a prove the nature of the prior conviction in this space your honor i think that they did prove the nature of the prior conviction but it was not a trial consideration it was a sentencing consideration it's not something so in other words to get for this that or the other you know was this a prior conviction for a pete possession of a controlled substance that was a class two or higher that's the point at which it bounces from that basic level of class three to an enhance it depends on what prior conviction is charged in the indictment right your honor it depends on additional elements ed you have to put it in under the notice requirement you have to put it in the prior in the charging document if you want to get it at sentencing but that takes place at sentencing that's a sentencing consideration i don't know that answer your question well my my question is based on two to believe your argument or to follow your argument we have to look at the u u w by a phone statute as a class three offense with a class to enhance it and what i'm saying and what i've heard you say in response to justice calmer is there is one you you don't you stand by a phone right you don't have by phone statute and that is the whether it's a class two or class three is whether you charged the right prior conviction in the indictment or you that we call them forks in the road i think in our brief but to say that you know to say that well it depends on what's in be charging document i think that you have to comply with want to live and see three in the charging document or else you can't enhance it but i don't think that the ones in the charging document alone is what determines the sentence i think you get the sentencing hearing and you you present other evidence and make other findings but there's a separate and they also that takes place there yes the state is trying to carve out a completely new and we believe a necessary exception to this rule but when a prior conviction is an element of the offense nothing want to let him see through supports this finding you know counsel made it seem like well this was a special case no this is not needed here because it's an element and then other cases it would be up stakes it may be a sense of you know you w by a felon you buy a felony conviction this bumped up in classification home invasion is not specifically listed as a forcible felony in the definition of forcible felony in another part of the criminal code however if the home invasion were based on those say some kind of violent act then presumably it would fall under this catch all provision that would make it a forcible felony and then that would carry higher penalties and i hear classification so this is another example of a case in which a defendant could be charged with something home invasion there's an element of the offense and unless the state states it's a notice its intention in the fashion prescribed by one of the a c three defendant is not going to be on notice of the sentence he faces counsel also you know talk about what the fit the defendant had you know this the defendant couldn't help but know this but you get all the way to the sentencing hearing and not only does the defendant not know and defendant's counsel doesn't know the state doesn't know the trial judge is asking questions the state is saying well i think you should get class x defense counsel says no i'm class x somebody says class to the states as well at least class three we're talking about the very last day that this guy argue here that there has been any prejudice to him for failure to get this notice why would the failure to give notice invalidate the sentence or your honor respectfully i disagree that there was no prejudice to him i think precious can be demonstrated in the fact that you know for instance there's reference in the record to the state has made an offer and then has withdrawn the offer so he's at least had to go through plea negotiations not knowing what he's entitled to ask for i would think that would be a prejudice but if you look at the different ways that this has been evaluated in the appellate court this is either i think the appellate court below used language from the scorched six fifteen position has been that this is a second prong playing air and i think again there are there supporting in people versus way one that this is boy there supporting people versus cheney that this kind of errors boy but the court below analyze this as player second prong you know that this was a sentencing error that affected in a substantial rights and then certainly that's that's our position here although if your honour's were inclined to analyze it under a different rubric that would also be more than acceptable based on whether or not based on whether based on his understanding of what sentence and what classification he face so we believe that that's prejudicial certainly if you're our spine that this is there is prejudicial  argued that this is not something that's subject to prejudice that prejudice is not required here because this is placed a burden on the state it is talk in the language of rights in title months for the defense and that you know this is something that the state is expected to do it's not an onerous requirement i would imagine in this day of computers and everything you could change emerge form and have this included in every indictment in which the state has made an election to seek an enhanced sentence  and if you look at if you look at this right you have a legislature going to talk in terms of rights to notice if if this court doesn't force that and force the plain language of that then there's not actually going to i don't i don't think we can overstate or maybe we can but i'm going to try that this situation is exactly what the legislature intended to obviate in passing this statute that you wouldn't get to a sentencing hearing where people are arguing about what classification the defense defendant is subject to but this would everybody would know there were no secrets no hiding the bomb that everybody would know up front what the state's intention was what sentence and classification the defendant  hesitated to read into stance your exceptions that the legislature did not author and we encourage this court to go with that and not depart from a centuries plain language by reading into it exceptions you know we're here advocating a simple straightforward clear easy to follow rule a bright line precedent enforced the statute as a disk written in this case and cases like that a second on that cross appeal issue of double about the difference between mr ayres let's just say for purposes of argument we agree with your and say the state has to notify the defendant that this in this particular case it would be a class two they don't do it right the trial judge says you didn't do it based on the supreme court decision you're sentenced to a class three the state files of mandamus action says pursuant to the statute has to go back to the trial judge to do class two sentencing best  shall be sense to me no less than two years and no more than ten right here and that is what it says but again going back to peter white i think specifically to justice tice's concurrence and in that case i don't i don't think that that class to a sentence is authorized i don't think the state would have any mandamus action because it does not comply with the trial court is fish the time of sentencing them between a decision based on this hypothetical decision of this court th notice had to be given and the stand to that says he shall sentence to a class two and how do and then when it gets to this court how do you respond to a mandamus when they come right back in and say judge there was no discretion for again i don't think in this country to stand you know i think we're trying to mix things up or type talking about one thing and the criminal code we're talking about another thing in the court of criminal procedure the criminal code is process process writing certain conduct telling people what they can and cannot do in the state of illinois one eleven c three is telling the state what it has to do if it wants to get this sentence and what happened and by implication i would assume that this is you know informing the court that if the state doesn't do this then you know what you have to do that that code the code of criminal procedure is what regulates what goes on in the courtroom and i would think that that trial court would be bound by that to enter sentence on the class three offen multiple possible sentences based on multiple enhanced once those enhancements are what we're saying is the double enhancement here that it was moved from this to this double when he has what was not expressly permitted by the legislature i don't think  counsel's response to your argument with all this legislative history language says anything about what that what that language could mean other than that the visit wasn't on the legislature's mind to explain the explicitly permit this  you please the court the intent of the legislature regarding section one eleven three c was satisfied here and he was this depends on notice from the get go from that indictment and that statute that he's charged with violating that this was only a quest to fess every statute referred to in the legislative history for one eleven three c and every one of those twenty six statutes that they refer to that the sponsor of first two in for one eleven three c and that this court statutes that they cite it all had to do with cases where the prior conviction isn't an element you don't is one of those rare offenses where a prior conviction is an element of the offense and when that element of the offense as charged can base it's irrelevant whether it's a bench or a jury it was stipulated during trial in the case in chief two defendants prior conviction to his prior conviction under this prior u w by a felony conviction and  certified copy of the conviction was entered in evidence that is in the record at x one thirteen x one fourteen that was in the trial stipulated not in sentencing but the trial the people had to establish that element in order to prove guilty of the offense of utopia by a felony and as proved in an ass charge that require only a class to this was not enhanced defendant's argument about the sentencing hearing and somehow there was some sort of confusion is misreading what happened it was in three pages of the sentencing hearing and it had to do with whether this defendant was going to be sentenced as a class to offender or as a class acts the state was arguing that based on this class two conviction and his prior quest to conviction for possession was still motor vehicle he should be sentenced here is a class sex offender the trial judge and defense counsel both agreed that this was a class two offense but the trial was whether this was a two or an x and it was a two in general it was correct or simply depended talks about reading an exception into the statute and talks about how this recent prior case found that but that was a misreading  statute by prior in fact prior didn't even talk about the relevant portion of one eleven three c one of the three see by its terms again states that the prior conviction is not an element offense and shall not be proven to the jury the majority of prior did not discuss that section at all the dissent pointed that out and explain that why that's why i want to have a three c doesn't apply there by its own terms and why that the appellate court decision knowles is actually the correct one and that that reasoning should be followed another about double has been because here the statute plainly says in its own terms again a second or subsequent is a class two felony it cannot be more clear this depends on notice immediately and for these reasons in those in our