lot of unique facts as i said the only issues that mr dunmore raised were his probation revocation and the specimen of three fees and in this case the underlying conviction was for a u w but mr dunmore did not appeal his guilty plea and he never tried to withdraw this plea and in fact he's already completely done with his sentence where as of this august it's been discharged so given that the underlying current in people via the law or was found to be  and leaving the a w conviction as is the reason why we requested that that count be vacated as well as a subsequent probation revocation and the state also agreed to that was because this court had actually asked us to how can we allow that this is the you can allow it to stand again and on yes you can based on these specific facts i mean this is a type of situation where with subpoenas the fact you say makes this so different what makes it so different is that mr dunmore didn't appeal his guilty plea or try to withdraw it in any way in the opening brief the only issue he had was with this probation revocation and because he's already completely served the time on it you can leave that count as is i mean it would be as if in if every time that the supreme court were to find a count void or see a choice and there's arguably thousands of defendants who have pled guilty to that count it doesn't make sense that if they've already served their sentence they don't have an issue with that count for then to be seeking out those people and bring them back into court in order to validate their plea i mean this is a different situation where he never had a problem with his plea he's done with his plea and even addressing the cases that the state cited in their supplemental brief regarding reinstating the charges and double jeopardy and so forth even with those cases and every single one of those cases it was the defendant that had actually initiated some type of proceedings against his plea and so that's how it ended up coming back to court give me a case that supports your position a case that supports my position where this doesn't have to be done well this is actually a case that was not cited in the brief but upon further research there is a case in people v turner in the fifth district and basically in that case it's very similar to this case where what happened was turner put guilty to two counts of predatory criminal sexual assault and he went to prison for it right before he was about to be released the supreme court actually invalidated the count that he had pled guilty on and people be johnson that's what then initiate any proceedings against his plea and he just basically took no action against it what he pled guilty to at the time was a valid count and that conviction still remains intact and and is quite happy with it is ok with it so i would just argue that this just given the facts of this case where on opening brief in the opening brief mr dunmore could have arguably raised an issue with plea but when we spoke at that time he didn't have any desire to do so and the reason why was because at that time he'd already served just two years and he was currently out on parole and the last thing that mr dahmer want to do is have to go back to court and deal with this conviction however if you were to only deal with the probation revocation issue that would mean he doesn't have to come back to court he could deal with this all you know in terms of just correcting the record with his fees cor he wouldn't tell and this isn't a situation where you know we're asking for a windfall of any sort it's just a situation where his a utility conviction was valid at the time he served his time he doesn't any problems against it and it can stand and this court should just rule on the probation revocation issue and the fees issue now going back to the probation revocation issue this is a situation where at the probation revocation hearing the state only presented one witness officer of the machine who testified that to his knowledge ten of the thirty three items tested positive for one point two gra it's a pretty common rule probation revocation proceedings to defendants given that it's really civil in nature and the burden of proof is must often stipulate to the fact that it was there was a controlled substance your honor you're correct there a lot of times there's a stipulation that's entered as custody and that could arguably meet the foundation of permanence but in this case there was actually no stipulation there's  was no objection either there was no objection but at the same time in this situation i would argue that this is a situation where there was a complete breakdown of the chain of custody i mean at a minimum you have to show that the items that were recovered on the complete breakdown here in the chain of custody would argue that it can be reviewed still under plane air i mean we have a situation here where the officer just said that to his knowledge ten of these thirty three items were tested and they tested positive for one point two grams of cocaine we really have no idea as to where that knowledge came from we don't know who tested the items he didn't observe the testing he didn't say who tested the items we he didn't lie and the lab reports i mean there's just a breakdown here we don't even know if the items that were recovered are the same as the items that were tested and as i said there's no stipulation here either as to the chain of custody and the state could have easily done that and i don't think that at this point we should excuse their mistake and as to the question of the preponderance of the evidence standard being lower it is a lower standard but at the same time there has to be an adequate foundation that has to be some sort of scientific testing to  say specially in a case of a controlled substance it can't be enough that an officer says it looks like drugs or to my knowledge this is the testing that happened there's it is a lesser protection but i would argue that the probation are still entitled to d process and a fair determination that in fact the substance that was recovered is a controlled substance and based on that we would argue that his probation revocation should be reversed and just coming back to just in general with aguilar just to be clear what we're asking for is that this court just rule on the issues that were raised in opening brief given the facts here you can in fact just leave it as it is and this just isn't the case where you have to reach a deal are like i said you'd be taking someone who's never had an issue with this plea who's at home and force him to come back to court to deal with this a w conviction that he issue that's a death time it would be an issue i mean i can't say that right now i'm not conceding that he may mean that it may come back but you know that's something that there it can be argued there's so much that can be done there in terms of that issue but fort today we would just be asking that you reverse this probation revocation because the state just did not prove that it's a controlled substance and also to remaining five counts a u w after the defendant pled guilty the first violated his probation when he violated an order of protection the state now lead that violation and allowed him to continue on his probation on disturbance although it did occur in a parking lot between the defendant and his ex girlfriend a different address at a different address in which he drives exactly and the defendant said hey i don't know what objection against her and the young lady said all right can you go with me can you go with me to the building where my clothes are and we don't have a copy of you or protection that he had so we don't know whether or not she was entitled to go back and retrieve herself exactly but the officers realizing that you know domestic violence those can be escalating circumstances they knew let's get and then i can be corrected if i'm wrong but the defendant didn't object it was a matter of fact she acquiesced and said the apartments over there so when the officers to tea party they are they receive a hostile environment people are spitting at them throwing understanding is from the records at the door with some of the other people in the bedroom not in the bedroom his father was amusing in a bedroom where the window was if you were throwing things at the cops that's what the evidence did show so there were other people but now when the officers went there the people were not there but there were people who had access that's all we have your honor isn't that a dead end well i think that when you look at this officer in his testimony he has been an officer officer for a long time he's been out out in now in on the streets he's he's very familiar in to his knowledge based on his officers on the street are handle these on a day to day basis what they see are something different than what we would see but that's the point the point is ok maybe the officer has been in office for fifteen twenty years and he's seeing hundreds of crack cocaine cases and he recognizes  and he is confident in his own ability that's what we need here that the officers ability to tell us that he thought it was ok crack cocaine it's his ability it's someone's ability to tell us that in fact this inventory material matches up with what the lab tested and the test indicates that it was crack cocaine and that i think is what's brother i have a different thing that's rather than me he had to get an order protection against her you may not be aware that i had ten thousand emergency order protection cases and this came up all the time our guys on probation is a girlfriend that samak by with comes and gets an order protection against her to keep her away from him specifically for this reason because he doesn't want to get in trouble with the cops and she had access to that better she had access to his own longings and the bedroom we don't know what mischief she was up to because we don't have the petition from the order of protection and we don't have the order protection so i'm deeply concerned that this is one of those cases where in fact we don't know what happened and because we don't he had a row and you got it and then he got one against her right and we don't know the time but i will say february six twenty ten when this incident occurred he had an order protection against him when he was found in possession of an of a firearm so he had a pending order protection i don't know the  one comes in one comes and it's a very it's a terrible situation and it is a unique situation but you know our position is and i understand the concerns with regard to the private revocation probation as i said i wish i had more evidence i wish i had that test results but so in our guards to the state is still asking that you reach people be ideal are in this case and to not leave that ate up the conviction as it is as i stated i mean it just it's just fundamentally unfair it just doesn't  probation revocation and deal with the fees in regards to the probation revocation i mean there's there's a lot of problems here it is it is not enough to say have an officer say that it looks like it looks like i think it's drugs or so forth i mean i don't think you can set you don't want to set that kind of precedent here where basically even though it's a lesser standard the state does have to show that there are reasonable protective measures to add a minimum show that the items recovered are the same as the items tested and here you do have the officers gave an inventory number and gave a description of items and we have testimony up until he got to the police station but what's missing which is a huge part of this is we don't know what happened to those items from the station to the lab and a case that we cited in the opening or in the reply brief is some people be more and it's also first district case where in that case the officer is kind of i guess the inverse of this case where the officer was the one that said oh i inventoried i didn't give a number anything but then there was a stipulation that did give the number it's official forensic scientist  give a number in the train number and said it did test positive for cocaine so the problem there was that the officer didn't give an inventory number didn't give a description of the items so again there's that link missing and what the first district did there was they reverse based on insufficiency of evidence and we have a very similar situation here in fact it could be worse where we don't have a stipulation we don't know if it's even the same items so you know it was tested we don't even know because we don't have any suspects no there's no test results we don't know yes we don't know who tested items we don't know how they were tested we don't have a laboratory if it was tested we just know that to his knowledge they were tested and that's just not enough we have no idea where that knowledge came from