issue before the court involves enforcing this court's order from mr brown's shrek appeal in two thousand for the sport told the trial court to merge one of mr brown's aggravated criminal sexual some fictions into his aggravated kidnapping which would have made his aggravated kidnapping diction and aggravated robbery sentences run concurrent to each other but consecutive to the remaining aggravated criminal sexual conviction trial court remerge the convictions as ordered but otherwise  i don't believe this court specified which went and did the court in that in the mandate or in the order did the court say we direct the court to impose a concurrent  you recall not off the top of my head no well if you didn't say that would your position be different i've looked through the order multiple times i don't know that the court ever said that with the court said was  that in court or to have a triggering offense under the aggravated kidnapping statute there would have to be a showing of severe bodily harm i believe that's that and there was no showing really say that now when it went back to the trial judge i believe what he concluded was that it was still mandatory consecutive sentencing with the aggravated  didn't he say that yes well now would you do you believe that the offense of aggravated criminal sexual assault could amount to severe bodily harm if there was some showing that some showing of what severe bodily harm happened here severe yes and what do you mean by that the katie i believe or or the initials of the victim she would have had to have suffered some injury that was determined to be severe bodily injury under the law and do you mean some physical injury correct yes and is it would it be your position that as a general rule when a female or male would be sexually assaulted that it couldn't be argued that that was severe bodily harm and i'm not making a general argument that no that can't be argued i'm saying that that wasn't the issue here that wasn't something that was shown at the original sentencing hearing or again at the recent thing harry willett the recency hearing would you would you say that there's only one way t him yet the the trial court expressed a great confusion over how to apply the statute and how to interpret this court's decision well are the reason was because when the court interview order it didn't say at all which one to pay just says we're paid hitting one i'm not sure that it matters your honor which one whether it was the digital penetration or the penetration with a penis either way there has to be one of them has to be used to fill t aggravated kidnapping conviction there has to be a showing then of severe bodily injury as to either one whether there's a difference between the two and that in that regard remains to be seen but there was an explored yet there are multiple it now concedes that on appeal but were not bound by anything they can see you know but let me ask you this if we're talking about fifteen years is that what your your appeal is based on the idea that the fifteen year aggravated robbery should run concurrent correct term and that the aggravated kidnapping should run concurrent with the aggravated robbery and the only consecutive sentence should be the aggravated criminal sexual assault which is also consecutive to another thirty year sentence that this defendant is already serving correct so either way at the end of the day if your position were correct he would still be serving basically a ninety year sats basically he'll be in prison until he's one hundred five years old he's forty nine without the fifteen that's without a fifteen with about one twenty and the the other order does suggest certainly i would certainly agree that the the previous order does suggest that it was being remembered for the imposition of a different than what had originally been opposed correct this court  for a consecutive sentencing bit if he were to be found guilty of two acts of aggravated criminal second stop which he was but he would be subject to two consecutive terms but if he's found guilty of an aggravated kidnapping based time and age of a criminal sexual assault he's only subject to concurrent sets yes sure i believe it does because it effectually it's the legislative attends and in it also is in line with the supreme court's decision in people v king where if you're talking about a single course of conduct which we are talking about here and all of these multiple acts he can't you can't use aggravated criminal sexual assault too when there's two acts of it to support three convictions it would violate the legislative intent and it's and such well i'm not sure in that case or others that the intent of the legislature has now been to punish each act of sexual penetration whether it be digital or anyone else whatever that the multiple acts not only can serve multiple convictions but that each act can be punished and it is being punished in this case your honor when the one of the acts is being used to support the acar a kidnapping conviction so both acts are being used you're if you're found guilty of aggravated sexual assault and there's two x you would normally be subject to two triggering offenses but by saying that this other fence is well your honor it still is effectuating the attends of the consecutive sentencing statute and it was up to the state to charge this in a manner that would effectuate you know maybe the result that they wanted and they they didn't they could have chosen to charge aggravated kidnapping based on the act made robbery they didn't this is the way that they charged it this is what my client was given notice of and to now switch that around is unfair do you logically it can't be in this case your honor when it is used as to support the aggravated kidnapping under section eight three he was charged and that aggravated kidnapping saturated with out that second act of aggravated criminal sexual  can sustain an aggravated kidnapping conviction so it is therefore a part of all of the elements of aggravated kidnapping so under the abstract elements tell us it would be your position is the greater sense yes your honor in this particular case the way that it was childish stance on the state is asking this court to revisit its decision back in two thousand four under the law exception so law the case such as the law the case our friend is a roth that says basically the court's decision is controlling and will continue to be controlling as long as the facts in the case for me the sa the facts here have remained the same is no argument that the facts change but the state asked this court to apply both the exceptions to hear it's argument the first exception applies whenever you in court subsequent to the lower reviewing court's decision makes a contrary ruling on that same issue and the second exception applies for the court finds that it's prior says it was probably erroneous but only when the court remand of the case for a new trial on on all issues neither applies here as the first except in the state fails to cite any courts have applied this exception in any situation much less one and i'll just hear on the state also doesn't cite any cases or even argue that this court should retroactively applied will be nowhere and it doesn't address new appeals that would result from doing so and that's under your interpretation of all wouldn't make any difference if the apply the affectation i mean would it make any difference in the outcome of this case your honor i don't believe so i think that it would still be just because of this specific way that the aggravated kidnapping sasser is written and the way that it was charged here i think either way this course decision the rationale this course decision back in two thousand and four w correct you cannot sustain the aggravated kidnapping conviction here without having aggravated criminal sexual assault as that lesser included offense supporting it is the aggravating factor and as to the second exception raised this issue several times when trial court the state again did not bring up this argument in any of those proceedings lesson for the state is that you don't prosecute take it to peter it's their choice to charge how they choose to charge if they are seeking a greater sentence they surely could have done so differently at this point he will be in prison until he dies either way the point is enforcing a law in the legislative intent as it was written at the time well the trial judge to get in line with cases the trial just goes to be the first in the best position to determine the sentence and in this case we have a trial judge that was given a mandate that said reset but doesn't direct him to how to do so and at that time he then says i believe that under this is a mandatory consecutive sentence now i think we can infer from that the only way he can come to that conclusion is that he who there was severe bodily harm so shouldn't we remember this case for the trial judge to either indicate on the record that the aggravated criminal sexual assault was severe bodily harm therefore the consecutive sentence is triggered or he concludes or she whoever would get this case that the act of the aggravated criminal sexual assault was not severe bodily harm and therefore the sentence would run concurrent your honor i don't believe that you have to do to take that step because the court actually imposed the consecutive sentences as far as aggravated criminal sexual assault and aggravated kidnapping under subsection a which is undisputed that was improper and asshole aggravated robbery the court you're saying it's undisputed that was improper no i don't agree the trial judge concluded and read me and after getting this rule twenty three that aggravated kidnapping based on the facts of the case applied because an aggravated criminal sexual assault occurred he was using the aggravated kernal sexual so where the record did he said that the transcript and thirty two to and thirty three if this is the recent yes yes and read reading a case like people vs talib or where a defendant challenged the consecutive sentencing under age for eg the court concluded that the legislature was reasonable to equate class sex or class one felonies with severe bodily harm to a group b to criminal sexual assault meaning that they are essentially the same that may involve severe bodily harm there was no finding to that effect i understand but the court specifically concluded that it was mandatory and there's only one way he could have concluded and there are multiple cases that say when the court enters it under a class x severe bodily harm the court should remain and it or the trial court to make that finding  not the problem is is that the court didn't make that finding the court misapplied a and then the court tried to apply subsection b which didn't apply at the time he couldn't use the public interest exception here because this was a single course i'm wrong that's not my understanding i think they're i just agreed he again talked about the public interest exception he spoke at length about the fact that he believed that mr brown needed to be in prison to protect the public he questioned whether this court knew that he originally sentenced under subsection b and then on page in thirty three he specifically used subsection b for the aggravated robbery consecutive well let's talk about that that in this case if the trial judge found work your position is that the egg made from a sexual assault is the only triggering of facts correct did the trial just trying to aggravate a criminal sexual assault was the only triggering event is i'm not no i'm saying isn't that your position that the aggravated criminal sexual assault is the only triggering offense here for consecutive yes so when that occurs let's say that there are multiple offenses and in this case we have a finding of aggravated kidnapping we had two aggravated from a sexual assault we have the aggravated robbery in their mission to the trial judge why does the court not have the power when there is no mandatory consecutive sentencing which you're indicating for eg repeated kidnapping why can't the court then say as it did in this case that if this is not mandatorily consecutive and i'm talking about the finding all the aggravated kidnapping if there is no mandatory consecutive sensing required but you're right why can't the court then do as it did here and say under b i am going to sentence you to a consecutive chom based and b that i am trying to prevent future harm to the public from your ex because your honor under the law in effect at the time of this offense that applied to this offense and the sentence subsections amy were mutually exclusive exclusive well established by law and subsection b could only be applied to offenses that were not committed in a single course of conduct b you're saying and what cases you cited biol wilder people be caved in and people be cooper people the whitney also discusses subsection b cannot be applied in this case the state you know in those cases say that only when it's not mandatory subsection b can only be applied the law at the time this subsection b can only be applied to offenses that yet we're hearing to determine whether something is the greater things in this case how can this be a kidnapping you know i mean in the logical sense be considered greater when it's not subject to the consecutive sensor honor because in order to fill aggravated kidnapping you have to also fulfill all of the elements of aggravated criminal sexual assault aggravated kidnapping as charged in this case is kidnapping plus all of the elements of a that subject to trigger but neither of the these tests that were at issue here look at that they don't look at the consecutive sentencing they're looking at how it's charged charging instrument test or they're looking at the abstract on the elements of what it takes to fill the offense salt's it was a kid no your honor i don't believe that there's anything wrong with that if the court clearly laid out its rationale explained everything explain prejudice explain why aggravated and there was nothing wrong with the court's decision that the court's decision correctly applied the law at the time and instructed the trial court on on what to do with the controlling law at the time and all that was left was for the trial court to correctly by the law unfortunately  sensing provisions of a no your honor if you don't think there's a strong legislative intent in place that when you're found guilty of committing to discrete acts of sexual assault legislature didn't intend for each of those to be a tree or the way that it's written it applies exactly the way that this court explained back in two thousand and four that both acts of agri from a sexual assault all are being punished they are being counted for you know what i'm my question to you is what is the legislative intent behind a piece of b twelve thirteen a twelve twelve twelve thirteen to impose consecutive sentences when those convictions are the convictions being sentenced upon however the constat consecutive sensing sasser has to be construed of course with all o if that were the case your honor then they would have written aggravated kidnapping statute differently however well i mean then the other question is is there severe bodily harm here and should we  to people versus williams three thirty five bill and thirty five ninety six which says when the specific fighting is made the appropriate the appropriate relief is to disagree there was no showing here that was not at issue but even if this court so decides to remain for reconsidering if there's severe bodily injury it doesn't a aggravated robbery when he made his final decision on page in thirty three yes he said under subsection b for protection of the public but what did he say about it a he used to make yes he did you say there's two aggravated criminal sexual assaults there's the one that is the conviction is entered upon and there is another one that is used for aggravated kidnapping and somehow he interpreted that as as a way to impose that i don't i don't believe so you're right i have the transfer oh ok you don't think he mentioned did he use b as a back up or something he mentioned he did that and original sentencing and that at this point he was doing court cannot enforce the order that from direct appeal where we now know that it was wrong let me ask you something just i want to clear this up do you agree that what is it the issue here is whether or not this defendant should serve a fifteen year consecutive sentence on a debate rockery that's it we're talking about fifteen years yes because he's already doing thirty on this case plus an additional thirty on the aggravated kidnapping ye and he's also serving bat sentence consecutive to a previous manned thirty year sentence yes because he either way he is serving ninety years regardless of what we do here today correct because the trial court determined that based on the facts of this case the heinous acts the defendant committed and his criminal background that that was the appropriate sentence in this category to say that about the heinous facts is that in the record i in the initial trial court sentencing decision based on the facts of this case defendant's criminal background seventy five years is the appropriate sentence here not sixty all right so should we look at should we look at what he said the first time yes absolutely  that when we sent it back for a new here because when the court sent it back this court improperly extended nowak at the time at the time novak stated that the charging instrument approach only applied to questions of whether the case the convictions were of lesser included offenses for jury instructions not for king analysis with the one act one crime is that what nowak said at the time or is that what miller said later are you talking about in this rule twenty three that we improperly extended or something at the time there was a misunderstanding in the appellate court there was no clear directive from the illinois supreme court film or supreme court stated that the charging instrument approach only applied to jury instructions all right well here let me let me just backtrack for me at the end of the brief and page fourteen i just wanted to know if you made a mistake you say since the appeal the sentence for aggravated robbery in that order to run consecutively is moot and then you say this court should reinstate the sentences as initially imposed by the trial court thirty years imprisonment for each count of aggravated criminal sexual solve to be served concurrent to defendant sense of fifteen years oh no that should be consecutive i apologize so that was ok so i meant to say what i want to know is you now that there should be four convictions in this case and it's not included in the in the brief this court has a choice of remedies here yes we cannot continue to have the eggbeater kidnapping and the egret a criminal sexual assault merge because they are composed of separate set of tory elements they're separate offenses the aggregate connection has elements that does not include the elements of aggravated chromos actual salt and vice versa there are two entirely different offenses but not the way you charge them but we don't look at that any more you under the abstract elements test how do you come to the conclusion that the egg abated that there's any change here in what would have occurred because they're based on two separate acts aggravated if you look at the elements in this case the elements of the egg a bead criminal sexual assault are all included in that count the charge aggravated kidnapping based upon a so why did you put that in your in this case the eggbeater connecting and egrets chromos actual salt are two separate acts the initial trial court's decision was correct and this court improperly merged  him currently but their previous order was based on a mistaken assumption that the educated criminal sexual assault should merge into the aggravated kidnapping yes but even with i don't think that we're convinced yet that under your theory then the appropriate remedy for this court would be to remain and to resign and defendant so that he still receives the seventy five year sentence that the trial court initially imposed because it found that that was the appropriate sense in this case although defense convictions cannot stand as they are right now because the aggravated robbery and the educated kidnapping cannot run consecutively then this court should remain for a recent thing in accordance with the trial court's initial decision that was the appropriate sentence for this defendant based on these fa and this criminal background well aren't you really trying to appeal any decision that we entered years ago the state is not the moving party here the defendant is the defendant is the one asking for really well but you're asking it doesn't seem to be palpably erroneous because at the time there were cases that were using the charging instruments approach to determine whether one offense was greater than the other because those cases were improperly extending novak now novak never stated that that was the proper approach for one act one crime analysis undertaking and in miller the court clarified that it should have been the abstract elements test all along so you're saying that the cases that the rule relied on the rule twenty three were cases that had already improperly extended nope it yes that nowak and so then in miller did the court say that we're rejecting what we said in opec or are they saying exactly well what would make it palpably erroneous when at the time the supreme court hadn't made their statement what what why should we apply miller to the rule twenty three did was entered in two thousand  because we now know miller to be the correct law we cannot ignore that directive from the illinois supreme court that that's the test that we should you are what if you're wrong about milk what if you're wrong when you you say that the aggravated kidnapping it's not the greater of facts correct what if you're wrong about the what if under the abstract elements test the way we read it it is that you look at all the elements the state is the one that charged this offense as a group date based on an aggravated criminal sexual assault so if you simply look at the elements needed for your age to be a kidnapping charge you need to prove an aggravated criminal sexual assault but you also need to prove the elements of secretly confining the victim against her will so you have more elements in your aggravated kidnapping charge then you do in the aggravated prim included big based on the way it was charged time let me ask you something else under the criminal sexual assault state is it your understanding  that you can make a criminal sexual assault and you're made it if it's based upon the commission effect the time another felony is being committed to secure understanding or not i guess i'm not really i don't have the statute directly in front of me i know that if you use a weapon a criminal sexual assault could become aggravated there's other factors but yes that can be aggravated based on the commission of another felony but in this case you decided to do the flip of that you then you'd wind up with the same sentence i don't know that this really because we know that that offense should not have merged well i don't think we don't get it off that's the problem that we're dealing with sitting here is you keep saying that this should be the greater offense but  but basically the the main issue here is that defendant is asking for a fifteen year reduction as the remedy and that is not the appropriate remedy in this case well but in some ways the the th not where he was convicted of two separate counts of aggravated chromos actual salt those are both mandatory triggering offenses well i'm not sure what what your argument is right now it's just that this court previously said but he was certainly and properly confused when the rule twenty three didn't tell him which of the egg your baby criminal sexual assaults was being vacated to file something in writing we would certainly permit that if we're going to do that they'll probably let state do the same but it would be simultaneous and we would ask that it be done you know within two weeks and that if it were as we discussed the the abstract elements test wouldn't change the outcome here the second act rated criminal sexual assault count is the last the lesser included of the aggravated kidnapping  reminded the case for a new trial on all issues and that didn't happen in this case so that exception doesn't apply if the other exception is where a higher here in court subsequent to the lower court's decision makes a contrail ruling on the same issue will or isn't necessarily a contrary ruling it explicitly stated that it was for the first time considering the abstract elements tests versus charging interest has and determined for the first time that this was the preferable test to be used it in no way indicated that it was overruling all that because there were differing views on what didn't the court say that the courts have used differing views to determine when something is lesser included offense and that the in the instance of they were saying that the charging instrument approach had been appropriate when it was relating to jury instructions but it isn't appropriate necessarily when you're looking at whether something is the greater versus the lesser and that is that for the first time they were saying we now say that in order to determine whether something is the greater force is less or we're going to direct our courts to use the abstract elements to correct your honor if it did discuss all of it and it narrowed it down to when it is illogical so it is in most instances it said abstract elements will be the logical test but only if it's logical to do so if it is illogical and it doesn't affect choice legislative  remey that would remain standing would be two separate aggravated criminal sexual assaults and the egg beater robbery and he would be subject to the the sentence would have been appropriate but since they charged him w discretion in charging defendants and they're given the power to do so with knowledge of what the potential sentences could be this is how they chose to charge him they even picked a bunch of them to an all process this is what it came down to this was a decision they can't go back on it now because they failed to look at what might happen to the consecutive what do you if the court concluded there was severe bodily harm committed then then the sentence would stand right in the court didn't make that conclusion it even considered it when the defense counsel on remand was making her arguments he even clarified ok it has to be either severe bodily injury or the sacrament of criminal sexual assault for a and he didn't go and make that finding and he even said what is that set so in the record we would be able to see that he was rejecting data i don't know that he explicitly says i don't find severe bodily injury or i'd have to repeat it again my point is that he did consider that that was more of the two options for subsection a and then he clarifies understanding what he thinks this court meant in its two thousand and four decision and he says just to be clear h deciding do you think there are any just from a philosophical viewpoint you think there are any victims of a great criminal sexual assault out there that would ever contest that they were that they were subject to severe bodily harm really off the mark off because in cigar of that the supreme court said and this was before the renovation shall we say of the previous rape statute before the legislature took on  reveal the entire act when it became neutral gender neutral that there was no longer this  requirement that had been in place for braving the elements were completely thrown out and new ones were put in but in the cigar of before this legislative revamping the supreme court said rape is unlike other offenses with the checked the victim psychological constitution and most intimate part of her being have been violently invaded and in towel over the court points out so there's something terribly illogical about this case in terms of you know the outcome that you're suggesting because the legislative intent is clear as far as aggravated sexual assault that it will any any individual act will be a fat your honor i would submit that this court correctly applied the law that it was a tiny fence and my client is entitled to notice of what the law was if there was some ambiguity or some loophole or some problem that is for the legislature to fix and i believe that souter did actually later fix that and revamp obviously the consecutive sentencing statute that's the process that's the procedure it can't be used now to retroactively punish my client or change the charges in the sense that he had do not i agree with you but i do i do question what the trial court's reason was when it re imposed and second sentence again for the aggravated kidnapping offense under eight it had to conclude there was severe bodily   i would have to say the whole check and i can include that in the supplemental brief also i just want to point out something that we spoke about when i first was up on page in thirty three the court has explicitly say that as to count twenty six the aggravated robbery i am sentencing him to fifteen years again exercising my discretion to protect the public so he is explicitly saying that he was doing that under subsection b which as such as we've discussed was improper the law doesn't allow it for right and we appreciate the arguments and the case will be taken under thank you ro