hour to think about it defense attorney confirmed five years in the penitentiary go to trial seven in spite of spite of the threat the defendant decided to take a chip to exercise his right to trial and as promised he got the maximum sentence of seven years well what do you say about the fact that the judge in the sentencing said that he didn't even remember the pharo to cap what is your response to that let me say let me repeat what the judge said in that instance he said i will state you that i would hope that i never memorialize or conferences i have no independent recollection of the offer and i don't want to know first of all what's what's the let me let me ask you well we all have the description of his background and five is pretty close to seven seven clete seven maximum and he could i mean he could give him six i mean is that what you're suggesting that maybe he's entitled to six or are you saying he's entitled to five but the judges are the sad five is only when you want to take assume responsibility only when you want to plead guilty and say yes judge i engaged in this criminal behavior and i'm going to see the society the cost and the the the effort of proving me guilty because i'm accepting responsibility but there are lot of questions of the table if you don't mind just as cardinal table your question for a moment why dressed as discussing this question what you're discussing it seems is the difference between leniency for pleading guilty versus a trial tax and there are ways in which the judge can show that what he's doing is providing leniency versus a trial tax the judge here use language of punishment he takes the hit he gets seven now the judge should just try to do that simply describe seven be greater than five well i mean for one we have an issue of a are pieces in from this district that according to scott the says that judges actually do have a responsibility to know what the offer was at a four zero two conference even if it was a different judge who presided over for a two conference then the judge who's presiding over the sentencing the judge has a responsibility to know and that responsibility is for what purpose the responsibility so that they can be aware of but the offer wasn't just be aware of the his life to pay off or make any difference if the guy goes to trial and he's found guilty well in this case we have an issue of pre judgement and then also if this judge in fact didn't remember within six be prejudged that's that that makes it more difficult question because here we have that with where there's the nile the memory and we have the exact they result that the judge and sad at the conference that makes them think that perhaps the judge was using the exact same calculus at the sentencing that he had been using at the plea proceeding saying chew years actually for the trial that's a trial if it's six then you have to think that perhaps the judge is reconsidering it however then there is but there's still the chilling exactly the information he needs to meet the reason then and then informed decision as to whether or not i should go to trial if i call the trial i get something like if i plead guilty i get five which which way do i want to go and he says i want to take a risk information is going to be used against them down the line as out as a claim that he's being punished for exercising his right not at all there's absolutely no reason to do that a case like civil cited by the state gives a so what you're saying is that he should never have said stop what i'm saying is is  probably would have gotten a lesser sentence that judge said however it would be terrible to penalize the defendant for exercising his constitutional right to trial and quote this man is not being punished because he took a jury trial this judge could have just put in a few words that would protect the integrity of the judicial system assure defendants that they are not being punished for standing the right or exercising their constitutional right to trial this judge be able to do that let me ask you this so let's say we agree that some question  what we have here is a tangible harm imposed upon a defendant and if this court affirms it's a rubber stamp it saying yes judges do this if they maybe they shouldn't get none of maybe the four of the country shouldn't be shouldn't be recorded then if this is what they're and but you could also be that because that's what it is oh but that's there's nothing in the record that says that he says i'll give him five he takes a hit i'll give him seven then defense counsel confirms five years in the pen penitentiary go to trial seven he's not saying this is actually worth seven but you get a little bit of leniency for greasing the wheels of justice so so on and so forth you say you take a hit and the judge had ample opportunity at sentencing to say no that's not what i meant i would never do that this is not a he really did remember and he really it really easy is opposing something because that's the hit that he said he promised the defendant but at the sentencing hearing even though he says he doesn't remember and even though he says he never recognized at any point it was inappropriate to issue a trial tax stoppel says well we do not believe that the experienced trial judge actually punish the defendant for standing trial the record leaves and rebutted the inference drawn by the defendant that he's being punished are the is how justice is done in illinois but in this case whether or not you remember there is nothing to indicate that he didn't use the same calculus and that he didn't think ok yeah this is worth five but it's a lesser punishment for going to trial and so whether or not he remembered we still have a situation you know never indicated any point i learn something new or the fact that he dropped out of high school which is what the state points to that leads to an extra three years not nothing like that happened there's just you know what bothers me here i'll tell you would bother me here i think as a defense catch the fence counsel would love to know from the judge what there would be if you went to trial and what there would be if you pled guilty ok and and you want to take that away so nobody would ever fact were were approaching that finding that it was penalize for going to trial if he was really powers for going to trial or even if there's a difference if i want to point from we should give up well there two things first i would urge the scorch to modify the sense here and for that in the interests of efficiency of the trial of the trial court below would have the exact same materials that this court currently has before it would just have a trial record there's not going to be an evidentiary hearing it would just be recent below would have to say oh well the fact he dropped out of high school that's two years is just not enough there's nothing here that was pointed to by the prosecutors that was new there's nothing here those pointed to by the judge that was new it's only the state's attorney now that the appellate state's attorney now is looking at it sort of combing through all the evidence that pointing to these minor things saying this is why there are two years there's no doubt that if that there there is no reason that the that this defendant if you was offered five if he if he does get seven after the after taking the trial the implication is that it is a trial tax maybe if the state if the court below doesn't do that if we don't have somebody who actually issued a threat maybe it would be different but there's nothing to indicate why it would be seven so in this case we have an issue where he was threatened with a maximum and he received  maximum the inference that he was being punished for setting trials left and rebutted any information that came out at trial regarding flight or the fact that he didn't graduate from high school nothing nothing about this was mentioned by the prosecutor at trial nothing about this was mentioned by the should be found to wait or forfeited an issue and because you want to inform us because we might decide to do that's correct and down and if you don't then we can conclude that the state also a wreck and you know what you were fortunate that they're as you know what i'll give you five but if you go to trial day at the leniency i am offering you now before trial is gone and you know what one thing you see when you look at illinois law when you examine that statement first of all that statement shouldn't be examined just up on so long it is mandated by the only supreme court that the entire record need considered and that includes the court statements it sends that includes the court statements hey i read the p s i hate you know you that was an important part of sentencing where he says he won't stop and that's important here where is five thousand he's the last one got out of prison seventeen days after before those last days he won't stop as what the courts  confronting a defendant with the risk of more severe punishment is both an inevitable and permissible part of any legal system that allows and encourages pleas and there's no doubt that by having rule for two on the books the states supreme court said five years later that you can confront a defendant with the risk of more severe punishment and that is permissible and that's exactly what the trial court that i've just this one additional point the people want to point out on the on the matter remedy the people did i think it was appropriate remedy to just modify this to find sentence where as the people pointed out this is a perfectly justifiable sentence for this to family given his background and all the facts and circumstances here bring up whatever issues in their opening brace it is up to the state if the state wishes to pursue that that angle to raise that in their brief the state did not raise it so accordingly that was not that was no longer i don't think it has anything to do with that i think it has to do what happened before the but it's not belief you see issue because this is something that said this is the plane or if you want to go to the plane or if you want to accept the idea that this has been waived by the defense despite the state's failure to raise it in their brief this is a plane or issue and so it's a case that it's a trial issue it would be it would be certainly ineffective assistance of counsel on my part not to be raising this in the well you know i don't know how you could school around playing here but the dead man this is the defendants this is the defendant's constitutional right to stand trial this is a fundamental right this is the kind of this is the kind of issue that is what you say when got a lesser sent since the defendant went to trial got a greater sentence and the mos court said you can't compare these two this is a different issue this is not takes a hit get seven years this is this is a case talking about differences between defendants and different postures and as yes that was about the in c and importantly the civil score it covered any concern about the about trial tax by saying by saying that this man is not being punished because he took a jury trial so will shows us how to do this there's not there's not a huge opposed to a statement depicting leniency there is no case and there is no case in illinois law that i've been able to find for diligent searching that shows us what a link what a statement of leniency would be we don't have this does not look like a statement of leniency criticizes the defense for lying and stockwell both because it's a federal court because it's a federal case and because it's really the only case this is it stockholm is the only case i was able to find that has a threat like that what is that they are in for except that it's the only case have had the opportunity to respond i did realize that and settling time for that i'm not familiar with that case but but that's it again with the issue of leniency i mean yes that's that's the issue in this case is is this leniency or is as a tax and there is nothing but it is so easy  the case like it so roadmap for how you show that it's leniency as opposed to a tax this judge didn't do any of those things we have something on the record there is nothing in the case on this as there is this if you look at the case law you have things like oh well maybe you would have gotten there's nothing like that says before that before the trial going to happen where the defendant is trying to make a decision about what he should do whether he should exercise his right to trial there at stockwell is the only case i was able to find that even occurs at the theory all the other ones are just the judge just sort of musing after the fact and even in those cases like moriarty and young that's considered so inappropriate that the defense so that the defendant is given relief even though in those cases it was in the potential chilling effect of the defendant's right to stand trial here we have the chilling of a court talking about what the defense would get regardless of what comes out of trial regardless of what shows up in the yes i regardless of what happens at the sentencing hearing we have a judge's prejudging the case and is telling that at the defendant that you go to trial that's worth two years that's a tangible harm and and