be defendant to be sentenced under the penalty as it existed before the unconstitutional farm out on was an act which in this case is the range of six to thirty years for a class it's offense the judge in mr smith's case has already made this determination by sentencing imposed simply because of steps for mandate the judge was therefore already determined that ten years in prison is the appropriate sentence for aggravated kidnapping under the range without the add on and this is so i see the same determination that the judge would have to make it's a grief for for a couple of reasons well the think that the main reason you're going to disagree is because maybe this case is really worth twenty five years as opposed to the ten years the judge imposed on the i'm the aggravat kidnapping charge irrespective of of what he said at the time of sentencing he the judge at the time sentencing certainly knew that he'd have to and i'm fifteen years and he's that seen posts on the aggravated kidnapping charge and so in the back of his mind he knew that the sentence was going to be much longer than the ten years the imposed on the something of what regardless of what he might have known of the back of his mind we have what he needs to stick with said and he the totality of the sentence that was imposed didn't they in fact say that the trial judge should determine what the total sentence should be and therefore remained his is in order and the reason for that was because the defendant house had two other sentences in addition to the sentence for attempt murder that would have to be increased on remand he had two other sentences one firm robbery and one for home invasion that were consecutive to that sentence and so the script for a minute so that the judge could consider the appropriate sentence for attempt murder and also the appropriate sentence for those other crimes to come up with the total that the judge deemed appropriate here we simply have one sentence one sentence fragment kidnapping and it would be condemned to be committed in a variety of ways and i'm not sure that the ten year sentence that he imposed for to for aggravated kidnapping really included the element of use of a weapon when the trial judge knew that the use of the weapon would put into jail an enhanced sentence under a different perhaps but what i mean again we have to go it's to what the judge said he said ten years was appropriate he you know we can send it back for another sentencing hearing and have to make the exact same determination in a way that you know would waste additional resources  court i would also go back to the point you had made the point earlier that perhaps twenty five years was the appropriate sentence in this case and i think if you look at the facts if you look at the minimal level of a pup involved with that mr smith that is the fact that he was acquitted of a temper  he had only a minimal criminal history three drug possession cases two of which were as a juvenile and two gun possession cases in light of that i think it's reasonable to assume that when the judge said ten years is appropriate for aggravated kidnapping h given the minimal involvement and all of the mitigating facts there and the minimal criminal history so are you saying that when he imposed ten year sentence he considered in the back of his mind that maybe the fifteen years would eventually get wiped out and therefore the ten years has to pay as a stand because certainly if he thought that the case was worth less than twenty five years you could have imposed six and heavy imposed sexy it we would have a fifteen year and on and it would be in total twenty one to the extent that you're arguing that the case really worth less i don't think in the back of his mind the judge thought the fifteen would be struck and i think if the judge knew that the fifteen year was i constitutional he would have imposed it even if the parties had argued that i think he would he wou priest i think what the supreme court was concerned about is that the court would just simply increase the attempt murder and therefore increase the aggregate aggregate even if the judge considered the previously imposed aggregate to be correct i think the idea was that one remained the judge could reduce the sentence for home invasion or armed robbery to to come to the perhaps the same aggregate that had previously and that's simply not a concern in this case because we don't have any other consecutive sentences to the epic kidnapping mr smith received that could be affected by a reduction of that sentence oversee every good sentence that i shall receive before the supreme court rivers i believe it was thirty or thirty five for the simply saying all right we're going to impose twenty five here because he's already facing thirty on the armed violence and that's the maximum he would face on this offense if it were you know given that we're reversing i mean don't you think i mean to that extent has to really stand at odds with john's baker well i believe it does and and even even well into the exhibit well that because to the extent that supreme court said that you look at the totality of the sentence and that's really what motivates a new sentencing hearing and the totality of the sentence in baker would not have changed it couldn't have changed it had to remain thirty and that that's correct i would also point out though that in baker there was no statement like there was in this case in which the judge said for example that twenty five is the appropriate system or an implied statement like that not every case i mean it is an implied statement isn't any need could have been expressed in this the trial he had just received the p s i i we could remained now and asked the judge to make the same determination but the judge you know for a half years later it's been about three or fewer since that sense of hearing the judge may not remember exactly what he was thinking he's just going to have perhaps what's in the transcript just like this court does there's a clear statement in there that ten years is the appropriate sentence not twenty five but time he went out of this way to say that he didn't just apportion the sentence ten fifteen for a total of twenty five he specifically said that ten years was appropriate i believe his course should take the judge at his word and rather than remand it for a sentencing hearing that would just waste the judge's time and waste resources in that respect just go ahead and impose the time reading what the judge would do i'm reading and saying this is what we believe the judge would do and therefore we're going to do it now as opposed to simply remey well baker does to some extent stand as you point out it is somewhat distinguishable but it does support our position and supreme court rule six fifteen always gives this court the authority to reduce a sentence but we reduce it based on information regarding whether the individual deserved the sen so for those reasons home i'd like to reserve a little bit of time for a bottle so if you have no more questions i would just respect respectfully request that this work to stop mr smith sentenced to ten y in mourning your honour's i am assistant state's attorney alan spellberg and i represent the people of the state of illinois this case is very simple it is controlled by the only supreme court's decision and housecarls if this case is controlled by by that knowledge as to what the proper range of sentencing is when a judge imposes a sentence with the belief that there's a mandatory fifteen year at the judge factors in the total  out ten years for the for the base crime plus fifteen years for the add on but the judge is clearly recognizing that this case is going to be sensed to a total of twenty five years and so in house fell with the only supreme court did was said we're going to allow the judge to reconsider telling to decide what the proper sense should be after looking at the proper rate it is not an apple theory that is now not an apple idea defendants raise that claim all the time whenever there's a here a misunderstanding of the range in here since then the onus report is that it doesn't apply we believe now is that it was unconstitutional and so the crowds that should be given the opportunity to reassess the case from the start and decide what you for presenting is under the six to thirty range which he wasn't able to do situation where once it had to be increased and that sentence was going to be served consecutively to two other sentences that was a specific situation that wasn't before the court and baker is a must for the court in this case that's why i believe baker remains