you good morning to everyone and made please the court i represent james williams who appeals his conviction for air graffiti federico for which he received the maximum extended term we have presented two arguments on both of these issues emanate from a common factual basis and that is that mr williams repeatedly claimed at trial that there was error by his trial court in failing to introduce into evidence and cut version of a certain video that the gate had used in an attitude form at trial the state in fact used this video or showed this video to the jury twice once when it was admitted into evidence and again th e point of closing argument beginning that after the state's additional closing argument mr williams claimed that his trial court excuse me that his trial  counsel was ineffective for failing to pursue and introduced into evidence the uncut form of the video the trial court refused to entertain this motion asked the point of closing arguments saying that it should be raised later by motion mr williams did then duly raised the issue in a pro se motion for new trial in which he again alleged to counsel ineffectiveness and the necessities death be uncut video be shown in order to disprove the state position regarding provocation and self defense the trial court did conduct a so called crinkle hearing or a preliminary crink hearing pursuant to the pro se motion for new trial we allege that the trial court's procedures in the trip crinkle hearing were inadequate  the crank all requirements have been significantly addressed and somewhat re fined by twenty two thousand and twenty decisions of the illinois supreme court one in the case of people versus radisson the other d in the case of people versus jackson these cases make clear that the st death in regard to defend dns most protein motion for new trial is to examine the factual basis for the motion the courts make clear that this examination of the factual bas fact intensive and that it is conducted on a case by case basis peculiar to the circumstances of the given case  what is particularly outstanding and in contrast to the present case regarding what happened in rajasthan jackson was that in both cases trial counsel gave explanations to the court regarding why they took the action that they took those actions being the subject of the defend that however is extruding was far from the procedure that the trial court file in this case the format of the trial court's consideration in this case was more or less simply to advise mr williams that he could present oral arguments regarding his claim of in effect as assistance of coun and then indeed mr williams did present what might be called an oral argument regarding his claim what is significant about this format between the court and mr williams during this proceed your rather mr williams presented his oral argument in the court waited until after th vat i'm calling it an oral argument to give its determination the other fact that is extremely significant is that trial counsel gave no input whatsoever trial counsel merely stood on the written motion that trial consul had ordered without any input whatsoever regarding the matter of the attitude videotape that mr williams was raising as an error the court made a finding simply that acknowledged that mr williams had raised a claim about this video buss said that that claim was quote completely unsubstantiated and quote well of course the single matter that would have substantiated or unsubstantiated the claim would have been the video the uncut video in question but at every single point that mr williams raised the ma about the content of the video except for mr williams representation and argument that that video would have been exonerating so we maintain that in this case the trial court did not make inquiry of mr williams regarding his claim it did not receive any input from defense counsel we do not even  defense counsel investigated the matter of the video so we maintain that this procedure was clearly in adequate under the guidelines specifically considered the uncut version of the video our nd argument on appeal is that the trial court heard in failing to consider the video at sentencing after the conclusion of the preliminary crinkle hearing the case had at the the case went directly into a sentencing hearing at the end of the sentencing hearing the defendant mr williams made clear that he was in possession of the video and that it could be seen at that time but the court said no this is n time now so you can address that d in a further motion so indeed mr williams followed the court's direction he filed a motion for reconsideration of sentence again asking that the video  the trial court refused to view the video the grounds that it was the matter outside the record the horse the record we will rely on our opening in reply brief for the discussion and argument to the effect that it is clearly the law that matters outside the record are appropriate for consideration at a sentencing hearing assuming a basic relevancy certainly the nature of the conduct should be imposed without a question trial court ruling that the video could not be considered because it was not admitted into evidence was the improper ruling is a matter of law is particularly agree just in this case where mr williams had been trying his best and did try his best to get this evidence before the court at an earlier point in the trial unfortunately we cannot make a representation at this point is to the validity of mr williams claim that use you know kind of the tried and true is it relevant and material for admission of evidence that sentencing is that subject to a harmless error analysis though well i want the well established rule is that is a trial court ruling is correct it can be sustained on appeal  even though the underlying reasoning was wrong so as a general matter i believe that  general rule would indicate that harmless error is an appropriate consideration but in general with reference to the case here under consideration harmless there cannot be and apply the polls we really do not know the potential for some of the evidence in that video and were that it depicted what was removed from the edited version of the un edited version was events that took place after the conduct for which the defendant stood trial that correct was truthful in her representation but it would be a fact that kids use evidence through a certain lens and that lens generally not the same lens that would be used by the opponent so i take the position that we do not know whether that is true or not without well here's  problem but here's my point if that's what the the state represented can we then extrapolate from that that that keeping this out throughout the trial and sentencing was a well i think that we could have concluded that it was we might have concluded that it was trial of strategy trial defense counsel had at a minimum acknowledged that she had refused the uncut video st cell we don't even have that basic assurance but don't we don't have a comment from the defendant i can't recall if it was in one of his written pleadings or if he made it orally that he and his counsel reviewed the entire tape together so can we assume again that his statement is truthful and therefore that that counsel did review the uncut version of summits that mr williams verbiage be difficult to conclude without some direct questioning of him exactly what he was arguing at a given point and i mean the reason for this i think is pretty clear so and that is that it was worth the price on him at the time of the hearing on the motion for new trial that he presented what would amount to a closing argument or an oral arguments such as i am attempting to give at the current time and i don't think that that is a skill that a layman generally would have so i do not recall a specific statement that i read in this record that caused me to interpret it the way your be engaged by the trial court with respect to the allegation so my question is that an option for the trial court or is it your position that it is absolutely required in all cases  here is it why is it or it would have been necessary here i mean the trial judge had just sat through the entire trial cannot the court rely on its own observations and recollections absolutely it can if  had an observation and recollection but if starr had no record but it had absolutely no observation of being added to the out portions of the video so i certainly would concede  that an example would be how we would interpret a piece of trial how a trial judge might interpret a piece of trial evidence that he heard so some sense of some paragraph repeatedly say to the judge one way or another the what i want to show you is how she was pulling me back and other words i guess implicitly is that you know there wasn't this beating perhaps or they were friendlier than what the testimony would have suggested somehow impeaching the victim isn't that the gist of what the defendant continued to tell the court that it wanted to show the court i do think that that's the gist of it well can't the court then consider that just in assessing whether it was ineffective to not show the excised portion well i think that when you have the past ability of certainty in a ruling or in a determination that it is as opposed to sheer speculation and our position is that it is speculation that evidence as the state would have had from some indication in the record as opposed to the indications from mr williams who strongly claimed that that the video was exonerating so you could have the certainty you know and a lot of circumstances need to be weighed that's what jackson and rogers have to say one idea is that it was represented that says the pieces of the video that were edited out was a short matter i believe it was at the very close of the sentencing hearing the mr williams said it's only about a minute so  proper procedure we are claiming would have been to review this video the trial court had no firsthand knowledge of the video and he had no input from trial cosell and he himself did not examine mr williams about what mr williams specifically meant about the video so i would answer yes the trial court could have relied is your honor has suggested if least the trial court had done one of the things that i've mentioned and i mean one would have been to let's say cross examine mr williams or direct exam and mr williams but pinned mr williams down on exactly what he meant in the trial court believed that mr williams claim was the cla exoneration i have not argued i don't believe that i can of evidence in and of itself would have exonerated mr williams what i believe that it polk ten surely would have done was substantially undercut the evidence  it really cannot i don't think be under estimated d what force this video had i mean st of all it strikes shown to the jury and that itself says something with reference to its prominence in the trial but it is also clear that it is the substantial piece of evidence which the trial court relie court says the truth is in the video and the other page the court says regarding the video i saw you hit somebody for no reason so i mean one of the factors in our argument is the central with of this piece of evidence so exoneration may be too strong a word it is however the way the trial court due to what mr williams was saying and i think that there's that one could loosely use that term given the are you presuming prejudice in so far as the crinkle hearing or are you able to express more specifically or explicitly how your client was prejudiced i think that a prejudice inquiry is inappropriate at the point at which the main argument of the defend the end was not properly resolved is an investigative matter and you know when i've explained those points of investigation which we claim the trial court failed in and which we claim are required or indicated to be the the proper mode of conducting a preliminary crinkled hearing and there is no substitute for that and the prejudice i guess you could say would be presumed when when the primary in initial question has not been properly addressed faces knapping pr investigated and therefore not practically determined and how would d a portion of the video that i believe is supposed to show her grabbing him and him swinging but not hitting her have any effect on the sentence i would do respect your honor we reject the notion that you can conclude what this video show a basic position that you know basic premise of the argument that i am presenting and that is that we simply do not know  and i have no don't know i have no further questions does anybody on the panel have any questions based upon questions asked by others i do not think you do you have any other questions it please the court and counsel i am victoria joseph and i represent the people of the state of illinois both the crank call and sentencing arguments here concerned a video which the defendant believed should have been shown at trial and  sentencing during the defendant's testimony he st presented on cross examination what the video showed after the defendant punched the victim in the hotel room and after he punched the victim in the vestibule he claimed there was another video of them outside the hotel when he was getting ready to leave that show the victim pulling on him not to leave at which time he claimed he mocked punched her again the defendant's representations were that counsel was aware of this video as the defended himself viewed it in jail and that is that record page for seventy two dollars while the defendant was represented by counsel at trial and at the sentencing hearing counsel did not introduce the video into evidence where the events the defendant wanted to show the jury took place after the completion of the charge battery defense counsel you sound trial strategy not to introduce the outdance of another attempt to hit the victim that would have neither mitigated the offense itself or the defendant's sentence the unplayed video became an issue at the defendant's crankily hearing when among the defendant's list of ineffective assistance of counsel claims he made an oral claim that counsel was ineffective for not playing at a trial to cooperate his testimony and to show the state committed perjury the trial court found all of the defendant's pro se ineffective assistance of counsel claims were either matters of trial strategy or merit  unplayed video became an issue again at the hearing on the defendant's pro se motion to reconsider sentence at which time he wanted the trial court to review the video the trial court refused to watch the video finding it was improper for him to look at video beyond what it argue the defendant's pros say post trial ineffective assistance of counsel claims the court must conduct some kind of inquiry sufficient to determine the factual basis of the claim the sta maintains that the inquiry here was proper the child court provided the defendant an opportunity to present the factual basis for the claims he raised in his pro se motion and the defendant explained his claims he had a list of britain claims and in the middle of discussing those claims he added the oral claim specifically about the video although the court initially tried to limit the defendant's claims to the written ones the defendant nonetheless asserted his complaint and we know the trial court considered it because the trial court commented on the video and his findings it is true that the founts counsel did not comment on the claims when the trial court gave counsel the opportunity to respond however the trial court did not need additional inquiry into the video from the defendant or defense counsel as we know from the supreme court's decision in banks the trial court may consider previous complaints about the same issue to explain while the trial court's inquiry during the crank a hearing itself did not need to be lengthy the trial court already knew the factual bas as for the specific claim from the defendant's testimony at trial and his assertions and the exchanges with the trial court during closing arguments those take place mainly on pages four hundred and thirty three through four hundred and thirty four of the record therefore the trial court was very familiar with the substance of the defendant's complaint since it was presented in detail on a prior occasion so the inquiry here was sufficient to satisfy a crankily inquiry and it is well established that decisions conce what evidence to present are matters of trial strategy and this complaint fell under such a parameter therefore the trial court did not air and choosing not to appoint counsel and to deny the defendant's pro se motion as to the decision at the post judgment hearing at the sentencing hearing the defendant was still represented by counsel and it was a gun sound trial strategy not to present the video it is correct that one of the statutory mitigating factors in mitigation is that a defendant acted under strong provocation however strong provocation is based off of the definition of serious provocation which is usually limited to physical assault mutual quarrel or combat and adultery strong provocation can encompass more but it must be direct and immediate here there was no direct and immediate provocation from the victim of any kind when the defendant hit her and his statements at the hearing that he hit her out of anger does not support a finding of strong publication we are not arguing that the video would not have been relevant and reliable had coun decided to admit it at the sentencing hearing however it was counsel strategy not to add to the defendant's aggravation showing another aggressive act against the victim that would not have mitigated his senten the issue is whether the trial court had to view the video at the hearing on the pro se motion to reconsider sentence as additional and evidence that did not meet the definition of newly discovered evidence the purpose of a motion to reconsider sentence is not to conduct a new sentencing hearing the purpose is to bring to the trial court's attention changes in the law errors in the court's previous up location of existing law and newly discovered evidence that was not available at the time of the hearing the evidence here was neither evidence of actual innocence that would have exonerated the defendant or even mitigate it has sentence nor was it newly discovered evidence as we know it had been in existence since the time of trial thus under these circumstances it was not an abuse of discretion to refuse to review the video pro sentencing hearing and we rely on our harmless error argument in the brief and we are reconsider quite succinctly but the point is here didn't the trial judge tell him you can raise this add another time there is no other time other than a motion to reconsider correct as far as at the trial level before it goes to appeal that would be the yes that would be the last resort to the trial level so where else would he have raised this i mean your argument is it was inappropriate argument at reconsider but isn't that exactly what the trial judge told him to do not we don't know that but there was contemplating the point is that he's the trial judge tells the defendant i will view that tape because it wasn't introduced doesn't appreciate that he can view it and then tells him to bring it up later i mean show me where there is not error in that process it would have been the shortest distance to have viewed the video and however the people maintain that although the court took a very bumpy route it was not error not to use the video it was still not an abuse of discretion and that your position is that it is not error to refuse relevant and material evidence at a sentencing hearing that your petition at a sentencing hearing  but however at the sentencing hearing the defendant was represented by counsel and counsel chose not to enter the video at the sentencing hearing ok at the end of this sentencing unity and this is right after the trial court has denied his crinkle hearing on the same grounds it is your honor o k all right you know i have no further questions thank you justice mclaren thank you just to spread and you have any questions just briefly as to the preliminary inquiry concerning crinkle and i was going to teach a judicial education class this would not be the model that i would introduce understand how the judge did not just ask one question of the defendant specifically what is it that's on the video that you say would have been helpful and my question to you is how do we not look at the court's failure to ask that simple question in assessing whether there was a sufficient inquiry at the preliminary hearing because we do have two times the defendant represent ted what he believed was on that video we have during his cross examination he said that there was the video he explained what happened after he punched the victim in the doorway of the hotel and that's again on pages th thirty  dollars of the record and he described what happened and then at the end of that he said correct they got the video and than again he represents what was on the video when he was discussing wanting to do his own closing argument that was on page three hundred and fifteen of the video or of the report of proceedings saying that she asked me when i was leaving what happened i said melissa was pulling me to come back and i threw a punch at her before i actually got in the car she said to the jury there was no video of that which is a blatant lie now it is her on the pro se motion that where a prudent trial judge would say well let me explore exactly what it is this defendant's alleging so we don't have to have this discussion on appeal because the judge who also presided over the hearing and the trial knew the complaint which had been addressed earlier so under the holding in banks again the in was very brief and on lengthy at the actual crinkle inquiry because it had already been discussed of what the complaint about the video and it says it's an act of asking for information and as justice brennan pointed out this seems to fall short in so far as somebody asking the defendant or information and i might add to it in addition to asking the question of the defendant the judge could have made a much better record if you'd asked some questions of defense counsel relative to when he or she apparently discussed the issue with the defendant how often where when and how and the nature and extent and asked  you agree or disagree with what the defendant has represented and so on and so on and so it's difficult to accept the argument that this crank will hearing it was an inquiry it's ironic that the trial court found that it was unsubstantiated and then during the sentencing hearing when the issue comes up about the video he says he can't consider it because it's the horse the record and because if the horse the record he determines that the claim is unsubstantiated when it could have been an substantial skated simply by asking some questions other than the state  that is the defendant and the defense counsel so the question i have for you is let's assume for the moment that there was error insofar as the inquiry was concerned was there any prejudice that arose from the iranians crankily hearings that would require it to be remanded no your honor because i do believe that the content of the video was represented and represented by the defendants not just by the prosecution so what he represented was a matter of child strategy it would not have altered the course of the trial or the sentencing whatsoever because we had completed offenses and this video would have added nothing helpful to him it may have more based on his representations of what was on it and we can we can you know consider the entire record at a critical hearing and although he was already at a as far as crank it would not have altered the course of the trial the conviction it would not have where the completed offensive taken place before there was any additional video the video would not have mitigated the offense at all what the victim did after he'd already hit her is not going to be a provocation for him in light of the questions that your honors posed to the state's representative we would rely and the argument that we  have already made a must there are further questions from the court thank you justice jorgensen you have any questions i do not thank you but just to spread and you have any further questions