may please the court my name is brian cook and i represent the opponent thomas taylor i would like to reserve a couple of minutes for about oh the issue presented by this case is whether a clinical inquiry is required when the defendant is represented by privately retained coun and there are two compelling reasons that it should be first this is consistent with the sixth amendment which requires that privately retained attorneys and appointed attorneys be judged by the same standards of effectiveness and second crinkle inquiry is the easiest and most efficient way to resolve a claim of ineffective assistance rather than going through a time consuming appellate process or post conviction petition a claim of ineffectiveness regardless of whether the attorney is probably retainer appointed can result a lot more easily and simply at the earliest opportunity during a post trial crank going kori where all the parties are present everyone's memory is fresh and the judge can ask just a few simple questions or to resolve that claim because critical does serve a very useful purpose in resolving claims of ineffective as official of ineffective assistance officially it's far better to require them to be done so regardless of whether the attorney is retained are appointed there's no good reason to create an exception for the large number of significant i don't believe it is defendant does retain control there but i mean the state for example has argued that this would interfere with the defendant's right to counsel of choice just to hold an inquiry but there are two reasons that's incorrect first requests i think then his attorney spoke up and requested that he be given a continuance and also be appointed a different attorney in part of the defendant did not do those things but regardless all right that's correct the same standards apply regardless and this spring court is kind of extended that principle and the converse is tailor to also pro se motion he examined them under the two prongs of strickland and decided that that claim didn't have merit so it isn't that the first issue in this case whether or not there is a claim at all that certainly one of the two main issues yes and we believe that here mr taylor did all he was required to do in order to trigger the trial court's judy to require this court has held in people versus mournin other cases that an inquiry is required for to require an  inform the judge of the factual basis to trigger the here he has to make a claim in effectiveness it can't just be a simple conclusory claims such as my attorney was ineffective without providing any any specifics about what type of claim for example in some circumstances it's not going to be feasible for a defendant to make a written claim in this case mr taylor didn't learn that he was class x mandatory and they might have had ineffective assistance until the very sentencing hearing at which he just asked defense counsel and the defendant exactly what they talked about during plea bargaining that's the entire purpose of the crinkle inquiry is to flesh out the facts of the defendant's claim of ineffectiveness to determine whether or not there's potential merits to it  presided over the pretrial hearing so the sentencing judge since he wasn't present at the time and wasn't handling the case wouldn't have had any personal knowledge upon which he could've just rejected the claim out of hand i think that shows the importance of holding a mentioned that one court hearing that the defendant had rejected an offer to reduce charge there was no discussion on the record about what happened exactly what defense counsel advised mr taylor of the consequences of rejecting that offer there's state's case at trial whether or not how likely it is that the defendant would have taken off for the state's case here was pretty solid to police officers testifying consistently you know the chances of winning that trial are very slim and when you do get a good offer and you know the consequences strength of the state's case and defense case at trial those are factors that might help us determine whether or not the defendant would have accepted the plea offer and then the important fact here is not simply the difference between the sentences it's whether or not the defendant was properly advised by defense counsel and could make an informed decision about that his statement at sentencing along with his attorney statements at sentencing indicate that he didn't know that and counsel failed to fulfill that very basic obligation of representation there were several representation in the record that were said this is mandatory there were there were two bond hearings near the beginning of the case at which defender was acting for asking for it is fine and the state's attorney said quote that defendant was  mandatory but there was never any explanation of what that meant she advise thirty years no at that at no time in the record was he ever told that he that x mandatory met six to thirty years it was just legal jargon it would it would have been his attorney's obligation to explain to him exactly what that meant and his attorney felt to do that if you look at his statement he said repeatedly in elocution that he didn't know that his attorney also made statements indicating that it wasn't until sentencing that she determined that he was indeed classics mandatory she said that been it down to a reduced charge and whether or not that would trigger mandatory classic sentencing but she said that any disagreement about that charge was moot because the state had just shown her a copy of a certified conviction for the drug charge  it was a class one so she said that yes she was conceding that he was class x mandatory so it doesn't even appear that counsel determined until sentencing that he was classics mandatory when she had an obligation to do that much earlier and  i would say no this court held in people versus more for example that when there is no inquiry into a claim of ineffective assistance the case must be remanded and that there shouldn't be for example a harmless error review in that circumstance because without a inquiry there may not be an adequate record to determine whether or not the defendant's claim had claims have merit here the record doesn't actually indicate that his claim was facially insufficient it remains an open question without knowing exactly what the defense counsel advised the defendant knowing exactly why he decided to reject the offer we can't determine whether or not counsel was ineffective or not it's essentially premature to make that determination without an inquiry  before we even get to that question though i understand that the state's position is there was never a request by the defendant for ineffective assistance of counsel but they also have an alternative argument that controls on the private versus public distinction under your argument then would be arguably yes there the judge did at least examine the claims to determine whether or not they had merits so will belong frankl hearing is unnecessary well there are lots of ways that a critical hearing can be conducted it i n some cases the judge can just rely on his own knowledge of the record in some cases that if for example the claim deals with things that are off the record the judge might have to talk to defense counsel or the defendant to see if there's a retained other counsel to represent him prior to the hearing of his prose from motions doesn't that draw a pretty broad distinction between i suppose it does but i still i think it's the same show here because here we're not asking as the defendant a criminal did for the trial court to appoint a new attorney we're just asking for an inquiry if the trial court had a point in a new term a new attorney a pick or a like the defendant wanted as the only one who could do that would be the definitive then the court should give the defendant the choice if the defendant can still afford an attorney the court should tell the defendant you have a right to hire a new attorney at this point or you could perhaps waive the conflicts and continue with the kind of attorney you could go pro se but if you don't have the money to hire a new attorney you do have the right to have want to point out for you as long as it's the defendant who's making that choice after the inquiry then there's really no interference with the attorney client relationship it's the defendant who is the one who is choosing who will represent him and so his right to counsel choice remains  it basically says that when we're dealing with an inquiry into a possible conflict of interest which is exactly what crinkle does that there should be note that the inquiry should be the same should be equally thorough and should be held regardless of whether the attorney is privately retained are appointed and that's very analogous to the situation i think it is directly contrary to what happened in parker r o and even more so in this case where nor inquiry at all was health so i think begins does support distinguishing koraro from this case and holding then an inquiry at least is required regardless of whether the attorney is privately or tuner a point i would also point out that it's going to be far easier as i did my opening to whether the attorneys privately retain or appoint it's far easier to resolve this kind of claim in a crank or inquiry because all the parties are present everyone's memory is going to be fresh the alternative is to push these sorts of claims back into lengthy post conviction petition proceedings or possibly under ect appeal if there's enough of a record but those possibilities will take a lot more litigation and will use up a lot more judicial resources just holding a simple crank  mr chief justice annabelle justices and supreme court counsel may it please the court i am assistant state's attorney ellen spellberg representing the people of the state of illinois the trial court in this case properly refrained from conducting any form of because the trial court had no authority to interfere with the attorney client relationship between the defendant and his privately retained attorney s to that third point under pegoraro this court explicitly held that when a defendant is represented by privately retained counsel the crank will rule the inquiry that occurs in crinkle does not apply because of the fear of interfering in appropriately in that same relationship the attorney client relationship is created soley by the defendant when he hires his attorney in is it the sole control of the defendant if he chooses to continue with that attorney or not if the attorneys decide if the defendant is displeased with his attorney he may focus which is being lost there is that the critical hearing is not one to resolve claims of ineffective assistance of counsel the critical hearing by its own terms is so we determine whether or not there is a potential conflict of interest for the attorney to go forward in argue claims and  assistance of counsel it is a separate part of the scenario is this court stated in it's the sole purpose of the inquiry is to see if there is at least a colorable basis of a claim so that way in new attorney needs to be appointed but doesn't more  authority complete right to decide who should represent him at that point but unlike minutes we don't have a record yes or no but we do have is we have the lack of a clear basis of ineffective assistance and let me just take one step back here was clearly within his authority to refuse to engage in any of the law was clear there's no basis for to reverse that and pectoralis we stay in our brief is a sensible rule because of the risk of interference with the defendant's right to counsel of choice and the risk of energy acting structural error but in terms of your point your honor about the the absence of a record the reason why we don't have a record in this is the primary point we make in our brief is that there's no clear basis there's no clear claim of ineffective assistance of counsel unlike nets unlike crinkle unlike elocution was one of regrets of being convicted of sadness at having been convicted again this was his fourth felony conviction he did not want to go back to prison he was sad at the sot at the thought of not being with his family anymore these are all the points  coming through and he expressed extreme remorse at failing to take in more damage plea bargain prior to trial that's what it was it wasn't a claim of my attorney misled me my turn again misrepresentation it was if only i had realized how great the risks course of the founders in title to catholic council but what's important to remember in the cradle scenario were a defendant is coming forward with a claim of in effect the representation the conflict is the creation of the defendant the defense of the one who's pointing out i think my attorney was inappropriate he acted deficient in some way and therefore he can't represent me in my attempt to litigate that claim of him of his ineffectiveness on like an mc and so on like in siler where the the attorney had a conflict because he had professional obligations lying elsewhere that attorney was incapable of representing the defendant in a way that was free and clear of any other obligations in this scenario it's the defendant complaining about his own attorney he is in control of it he can you to fire his attorney you can bring him forward in some way or he can bring claims denied the p s i was reviewed in amended at the defendant's request and then sentencing occurred so it was at the same stage as the crinkle scenario just earlier later in that same court date in the crinkle scenario it was he filed his motion prior to the post trial date but this was still in the same timeframe and the same court date it just to be clear we actually don't make an assertion in our brief that the defendants motion must be in writing there is some case law indicating that it should be in writing  this court and people versus crane is counsel points out in his reply brief addressed in oral crinkle claim our claim is not that it must be in writing but that it must be explicit because how is a trial court to know that a defendant is claiming ineffective assistance counsel if the defendant doesn't actually say that and i ask this court to carefully read the record and you will see in his statement allocution he never says my counsel misled me he never said my counsel gave me permission what he says is that while he knew that he could face a period of six to thirty years he never knew that he would absolutely face a period of six to thirty years so clearly he identified that he knew what the sentencing range was that he was potentially facing but he didn't know that it was going to be a mandatory if he faced if he was convicted as charge and the reason why that's an important point is because it's not uncommon for defendants who are charged with possession of a controlled substance with intent to the liver is this defendant was to be found guilty of a lesser charge and in fact if you read the record and you read counsel's closing arguments you will see that she stressed extensively the minimal amount of drugs that occurred here was enough to satisfy the statutory requirements for the class two felony but she was trying to say that it was a lot down to asking the judge to find him guilty she didn't say it explicitly but asking to find him guilty of a lesser offense and if she if she had been successful made if the judge had ruled that he was guilty of say simple possession of a controlled substance he would not have been facing a mandatory class xterm and i think that from the record from the entire context of the record bears out what occurred in this case because we see a defendant who protested his innocence throughout the entire proceedings from he was unsuccessful at that point in only at that point is when he starts complaining that he's unhappy with the sentence which he's facing but again not unhappy with the representation that he received moreover so for those reasons we don't believe that there's been a clear basis of a credible claim we don't believe that critical applies because of pechora but even more important we don't believe that the record supports any inference of any sorts of ineffective assistance of counsel the record clearly shows an active and engaged attorney representing her client's interest at all stages the record clearly represents that the defendant was convicted at a full and fair trial in fact defendant doesn't even contest that the trial which would curb the conviction which was entered was without a doubt says fight all constitutional and legal requirements as defendant makes no claim otherwise but instead the defendant is claiming that he's entitled to a new trial or at least ultimately entitle to a new problem with the crinkle inquiry which he seeks  results in the relief he wants ultimately entitled some to a new trial because of an unsuccessful plea negotiation and for that reason than our brief that we make the request for this course that we consider it's holding in people versus curry which held  defendant because we're a defendant has been fully and fairly convicted following a trial to give him the opportunity for a new trial simply because the plea negotiations were unsuccessful earlier allows him the opportunity to get a second chance at the at the at the opportunity to have a second chance at it and wreck it fails to recognize that while there might be institutional and purposeful reasons for seeking a plea negotiation early in the process once it has gone to trial the prosecution especially may no longer have those interests in particular we point out in our brief and this is not an uncommon fact that we may choose to accept because we want to avoid having to put the victim through a vigorous cross examination that is a very important consideration for us whenever we are engaging in plea negotiations but under the current rule if there is been some mistake or some alleged deficiency of representation during the plea negotiations and the defendant rejects an advantageous offer and goes to trial in his properly unfairly convicted under the cruel he can still negate that claim simply because of th legit ineffective assistance at the at the plea negotiation stage but while the people may have had an interest in avoiding the cross examination of the victim in the first place they're fixing has already undergone that cross examination and now is with the u s supreme court's view of what the sixth amendment right to the effective assistance of counsel is it is a in attempts to ensure the fairness of the trial the basis of the conviction of the defendant's condition and for that reason we would ask you to reconsider  that the defendant can get is it only a new trial if you've seen yes yes i would think that would be the basis and under curry what curry specifically said is that in the scenario of ineffective assistance at the plea negotiation stage meaning being given materially mis information then the proper remedy is not only a new trial but in order to resume the plea negotiation process and it it's our position your honor that that remedy which was addressed in curr is inappropriate it doesn't truly remedy the defendant's concern which was that he didn't take the possible plea negotiation earlier that was offered and he went to trial and had a full and fair trial so no one's rights are actually being protected by that type of gravity because we cannot recreate the original scenario and encourage this court didn't order that the defendant is entitled to the to the earlier offer so if this case if there would be that the defendant entitled to a three  the no i don't believe he could be subject to a greater penalty because under our statutes once you're convicted if a condition is reversed on appeal the most you can get is the same sentence on lesser of a new information which would authorize higher sense but it's clearly your position that you're not required walker three years off that was withdrawn now curry seems to indicate that we are not obligated to do that that at least that's the legal wrong practical scenario i think that there would be a great institutional pressure to resolve an old case by just remove by giving an offer that was previously offered by the state and so i think that the the institutional pressures are only to the defendants benefit at that point they don't longer recognize that there are appropriate reasons to engage in plea negotiation there's appropriate reasons to have to make a decision by particular time and there's appropriate reasons to recognize that the trial which of which occurs is a full and fair trial in that bed is the court's judgment thank you reverse old case law for example cross comparison analysis under the fortune of penalties clause proved to be just unworkable in arbitrary but there's no indication that curry that these sorts of claims of ineffective assistance have been resolved in an arbitrary defendant and said that you know we're just going to fashion the best remedy we can in this situation because we recognize the importance of plea bargaining most cases are resolved by plea bargaining so it's very important that the defendant have  tent advice from his attorney so that he can make an informed decision if this court were to overrule curry that out you know check on defense counsel's ineffectiveness would disappear i would also point out the state argues that the sixth amendment is just designed to ensure the defendant a fair trial and that's not entirely true it's also ensured to design fair proceedings from start to finish the defendant doesn't just have a right to counsel a trial he has a right to counsel at all critical stages and has a right to the effect of a system ineffective assistance here that is the majority position there are a handful of courts that have held that specific performance of that rejected police should be granted but this court's position was no specific ones i would also like to briefly address the state's claim that mr taylor should or that a crank call inquiry should be required only when the claim by the defendant is explicit there are several problems with that position first of all this court has recognized that defendants proceeding pro se may not know the exact legal basis for their claim because they are legal and trained they may not know all the facts that are necessary to proving their claim and for that reason this is this court has adopted more relaxed leader requirements for post conviction petitions that reasoning applies just the same here and i think it's even stronger here the defendant didn't warn that he was class x mandatory until the same sentencing hearing at which he told the judge he didn't know that he didn't have a lot of time to formulate a more explicit or articulate claim he didn't have time to prepare it motion or do any of those things he was put on the spot and and did the best he could the trial judge on the other hand with his training and experience and knowledge of the law isn't a good position with a claim of this sort we have a basic obligation the defense counsel has to inform the defendant of the the consequences of either accepting or rejecting a plea offer there's no valid strategic reason that defense counsel could forego advising the defendant properly about that that makes the claim of ineffective assistance here very clear the only conclusion that can be drawn from mr taylor statement that he didn't no he was classics mandatory is that his attorney who was the only person who had an obligation to tell him that is that his attorney didn't properly advise him so in thinking about this this case you think should have been incumbent upon the trial judge when the defendant the i think the conflict is actually pretty existing if defense counsel was ineffective it's that ineffective this that creates the conflict not the inquiry into it home if defense counsel was ineffective than defense counsel has a personal interest in not raising his or her own ineffectiveness in arguing it adequately it's that conflict that forces the defendant to raise it on his own and that forces the trial court to then inquire so i think the conflict is preexisting adequately arguing his or her own ineffectiveness and that's why exactly what crank call requires if there is a potentially meritorious claim that the defendant get a new attorney who could argue that claim without that conflict of interest  ineffective and conflicted attorney is saying another it would probably be inappropriate for the judge to just rely on what this attorney who may have a conflict of interest to just assume that that attorney is credible and in that case that sort of credibility determinations are probably made in a never densher a hearing where it would this is to present if they can be cross examined in a more formal manner in that situation i think there would be potential merit to the claim if there's some dispute about exactly what was said during the negotiations by defense counsel mr cook the defendant clearly indeed you knew that sixty thirty was the record show where he got there figure was there from the judge at the time sentencing or i would also point out one final point even if he knew it was possible the state argues that he knew that six thirty was a possibility when he plea bargain from his statement a no accusation if he knew that it was possible but not mandatory counsel still would have been ineffective in that situation because counsel would have been giving him incorrect advice about the sense in consequences it wasn't just a possibility if he was found guilty as charged a classic sentence was mandatory and if he was told it was merely possible that would have been inaccurate advice and would have been  case number one zero seven zero three six