doubtful my name is michelle graham all these stein may it please the court i am an assistant state's attorney with the cook county state's attorney's office and the issue before this court today concerns the proper construction of the extended term statute the trial court in this case determined that even though the statute does not explicitly provide for a tolling provision for delays caused by the defendant  told the ten year time limit for using prior convictions as a basis for an extended term sentence that it would toll that ten year time limit based on the six years that the defendant was a fugitive from justice in this case after he violated the terms of his bail and fled the jurisdiction and that the defendant whose hideous aggravated battery warranted an extended term sentence and who would have qualified for one based on his prior conviction had he not violated the terms of his bail and fled the jurisdiction would not be allowed to use his bad behavior his illegal behavior to insulate himself from the appropriate sentence the appellate court in this case vacated the extended perm portion of the sentence finding that because the statute did not explicitly allow for tolling that it could close did the trial court's actions while agreeing that tolling actually funded the purpose of the extended term statute the appellate court concluded that allowing for it in the absence of language in the statute itself would be tantamount to an impermissible judicial rewriting of the statute the people submit today ya knows that the appellate court's ruling is an overly strict interpretation of the statute that is not required by the language of the statute nor by any other will of statutory construction including the requirement that penal statutes be strictly construed moreover this decision conflicts with the intent of the legislature in the enactment of the extended term provision with the well established rules of statutory construction and with longstanding public policy indeed it conflicts with this court's three previous decisions on the extended term these in these let me ask you a question here based on i mean certainly your argument has if nothing else equitable healed right but you stated in your brief that in this is forcing of it when you're discussing in penal statutes being strictly construed you see normally a court under the guise of statutory interpretation remedy in apparent legislative oversight by rewriting the statute in a way that i i think the answer to that question your honor is threefold first of all the portion of my brief that you quoted the end portion of that says that the statute can't be amended to be inconsistent with the legislative intent i believe that's what you read to me and that adding a tolling provision here is not inconsistent with the legislative intent now the rule of lenity which is the the needs to strictly and narrowly construe penal statutes is rooted in the due process clause ok it derives from the right a citizen has to understand that his conduct is criminal to know what conduct as it is prescribed and it requires that the statute sufficiently define the standards of illegal conduct so as to avoid arbitrary and discriminatory enforcement now any citizen in illinois has ample notice that there are legal consequences that attach to their becoming a fugitive the fugitive disentanglement doctrine and the longstanding public policy of not allowing a defendant  advantage from his illegal conduct have been fixtures in this state's jurisprudence for more than a century so our constitution grants a defendant a criminal defendant a right to a direct appeal now that provision of the constitution does not say but if you leave the jurisdiction you will forfeit that right and there is no statute giving the court the power not versus lieberman there was a very long list of crimes which qualify for civil commitment under the civil sexually violent persons commitment act in leiberman this court read into that statute a crime that wasn't listed in that very long list the people would argue that the tolling provision that exists in the statute as it was written isn't  list it's a modifier it's not a list and it shouldn't be interpreted as an exclusive list that this court has read tolling into a statute where there are no words for it it did so when people versus powell another case under the sexually violent persons commitment act where the defendant was convicted on a number of sexual sexually related crimes and he was up for release and the state filed a petition for civil commitment against this defendant within five days of his expected release date and the defended refused powell refused to sign the document that advised him or if he were he was a good knowledge in that he understands where and i understood and accepted the conditions and the ramifications of mandatory supervisory release he intentionally refused to sign that document because he didn't want to be civilly committed and eventually he did sign it and commitment proceedings began and he filed a motion to dismiss because the sexually violent persons commitment act required that petitions be filed either ninety days before the release and to m s r but within thirty days after and the defendant had stalled his entry into m s r so that the state's petition was untimely and the trial court refused to dismiss that petition it would not let the defendant take advantage of his own wrongdoing his refusal to sign that document in order to create a way to keep himself from being severely committed the court said that if if it ruled even though the statute did not provide for anything but these time moments either less that more than one to less than ninety days or more than thirty it had to be filed less than ninety days before  release and no greater than thirty days after his entry into m s r and the trial court said i am not going to give the defendant any control over when and how the state can file a petition now the appellate court said well sorry the plain language of the statute has these filing limits these limits are in director or not directory they are mandatory they are intended to protect the defendants the inmates liberty interest in release from prison and we are stuck with the plain language of the statute this court disagreed this corgan powell said we are going to read that statute says to allow for a timely filing with end of the anticipated date of release the words of the steps you didn't say anything about that and the even though the appellate court said look at the state had another remedy they could have refile that petition within thirty days of the defendant actual release and this court didn't care about the existence of another remedy it said to accept the defendant's construction of the statute would be to defeat the intent of the legislature it would be to create an unjust result and this court wouldn't allow it and the the provision that the state that the trial court found to exist here this trying provision is no different it is based on the same theory that a defendant should not be able to behave in powell it was just badly in this case it's illegally he knowingly left the jurisdiction he had done it once before he was gone for six years if he had not been arrested on the bond forfeiture warrant he would probably still be out there today because he never turned himself in and yet we're going to allow that illegal conduct to insulate him from a sentence that the facts of this case warranted and that he fully deserved when we have a strong public policy that is well respected well known and very entrenched in our  is not going to be allowed to take advantage of his bad behavior and that there are consequences for becoming a fugitive justice thomas today answer your question that it is the intent of the legislature and not the explicit or literal wording of a statute which is the appropriate guide to proper interpretation is that mistreated by this court's opinion in lieberman hoping to am i going back to what i just started but what lieberman says is that the the state legislature didn't intend to omit rate and it was the intent that was important it didn't look in lieberman just to the intent of that one provision so this court isn't restricted in looking to this one provision it is it looks to the intent of the entire sexually violent persons commitment a this court has on numerous occasions said that the intent of the extend term sentence statute is to implement the proper public policy of punishing more severely those repeat offenders whose multiple multiple convictions demonstrate their resistance to correction now the conduct that the defendant exhibited here appear demises the type of conduct which the  extended term set as statute was intended to punish so that to allow him to break the law and then remove himself from the n bit of this statute that is intended to punish more severely those who repeatedly break the law could not only defeats the purpose of the statute but it leads to absurd results it creates a great injustice and it isn't required by the language of the statute and so for those reasons the people respectfully request that this court find that the appellate court's holding was not required by the plain language of the statute because it was not in keeping with the intent of the statute the defendant argues that there were the state had other remedies that they could have charged him with or they could have tried the absentia that they could also have prosecuted him for a violation of a bail bond but this court's opinion in power makes it clear that the existence of other remedies doesn't court said ok so we're we're going to excuse the defendant's bad behavior because the state could have done something else this court when it reversed the appellate court and powell did not find that the existence of another remedy controlling it refused to allow the defendant's bad behavior to bind the state to an alternative avenue of relief and the same should apply here because the legitimate goal of the prompt and efficient administration of justice which is served when you impose consequences on a defendant who becomes a fugitive and you don't allow him to take advantage of his own wrongdoing those legitimate state interests are not further because there is an alternate avenue for redress now the fact that the defendant might have been able to receive a consecutive sentence for his violation of bail bond is also irrelevant to whether or not he should serve the extended term sentence this heinous aggravated battery that the trial court deemed appropriate a trial court is charged with fashioning a sentence based upon a myriad of factors and the fact that the defendant could have served an additional term based on his commission of another offense does not answer the problem of the defendant being able to use a self occasion to delay to insulate himself from the sentence that the trial court deemed proper nor should he be able to force the state to encourage the additional expense of another trial or the extra review that comes with an in absentia trial just to ensure that he will serve the number of years that he should have received for the original crime if you just want to make sure i hit all my points your hono if there are no other questions because the plain language of the statute is not explicitly forbidden the tolling of the ten year term for the delay intentionally incurred by the defendant because precluding such a such a toll ing produces results which defeat the legislative intent which work a great injustice and which allows an absurd result to obtain the people respectfully ask this court to reverse when a defendant is convicted of any felony after having been previously convicted in illinois or any other jurisdiction of the same or similar class felony or greater class felony when such conviction has occurred within ten years after the previous conviction excluding time spent in custody although the state has never quoted the statute or pointed to any specific language that this court needs to interpret it argues that the such it is ambiguous because it does not explicitly exclude what the trial court said in this case therefore my client would have served additional time more likely than not and the state chose not to avail itself of those statutorily authorized remedies and again respectfully it's not the place of this court to remedy the state change of heart in fact the state should be addressing its argument to the general assembly and not this court because exceptions of the state's argument in this case counsel argued that  there's no common law of sentencing and therefore the equitable principles such as the first which are by wrongdoing doctor and have no place in this case bit of time discussing lieberman and powell but as i just said the statute issue in that case is a civil well actually it's a civil proceeding and therefore it's not a penal proceeding and different rules apply in that case counsel also argued that because my client was out he had violated his bail bonds for six years he should be punished now by rewriting the statute to overrule at the legislature has decided to do but in fact my client was not convicted of any offenses he was out and the state as i said kind of prosecutor time for violation of bail bond they could have tried a minute sencha but because they chose not to do those things he has no conviction for fourteen years and the plain language of the statute provides that if a defendant goes more than ten years without being previously convicted then he's not subject to an extended term sentence for any reason except spent in custody and here i'm not really sure what else to say i mean honestly this case really should be across the street as i think the state has been arguing all day about other statutes so if this court has no further questions i will conclude by saying that the cvs argument would require this court to rewrite the statute and if any  result is absurd it would be rewriting the statute because it doesn't include something that would mean rewriting all statutes because every such doesn't include something so i ask this court to affirm the  vacate as void the extended term portion of mr garcia's sentence thank you thank you just a few brief points first of all i'd like to disagree quite strongly with counsel that this court decided in robinson that every other portion of the extended term statute other than the one considered in robinson and that had to do with  federal conviction in a previous version that the statute is not ambiguous as to every other aspect that is not what robinson held and in point of fact in two thousand this court had to come to another concern about the extended term statute and the meaning of the conviction and when the sentence actually occurred that was in layman's so we dealt with an ambiguity there secondly the fact that the plain language of the statute does not include a to provision does not make the language clear and unambiguous and that is demonstrated unequivocally by this court's opinion harder than another case dealing with the extended term statute because harden explicitly said where a statute neither provides for something nor excludes it you cannot say that the clear language of the statute is unambiguous the statute is silent on that issue and once the statute  silent then this court can look to other areas in order to determine what the legislative intent is and those areas are not only the reason a necessity for the law the evils to be remedied the purpose to beach cheve but it's also things like public policy in power world this court looked to public policy and it also looked to how other statutes deal with similar facts situations so powell felt that it could draw by analogy on the speedy trial statute which explicitly does include a tolling provision for delay occasioned by the defendant and it applied that policy that legislative intent to the facts of this statute the sexually violent persons commitment act even when that statute did not include any kind of tolling so powerful and hardened both demonstrate that this court is not bound by the language of the statute and it is not improper judicially rewriting to interpret a statute through the lens of public policy that has been a guiding principle of this state's jurisprudence for one hundred and thirty also in terms of the rule of lenity the yes powell and lieberman dealt with the sexually violent persons commitment act and but that statute is is was the court said might not rule wasn't necessarily criminal but it certainly was quasi criminal and the rule of lenity did not require the court said it to construe that statute so rigidly as to defeat the intent of the legislature the people will submit that the trial court in this case correctly recognized that allowing a defendant to insulate himself from an extended term sentence that he deserved by fleeing the jurisdiction would to defeat the intent of the legislature it would be an absurd result if it was not in keeping with the public policy of this state or with the clear legislative intent as express in statutes like the speedy trial act and for those reasons it told the term the people respectfully request this court to adopt that interpretation of the extended term provision affirm i believe your honor that why in my answer to that is the fact that there are other remedies is not controlling that's what this court said in powell it's not the fact that i might have been able to we might have been able to prosecute defendant for a violation of bail bond doesn't mean if i gave him a consecutive sentence for another crime how does that right the wrong of him not serving the sentence that he deserved for the that he was convicted there apples and oranges the fact that i could have gotten the same number of years by getting a consecutive son's quite frankly he should have gotten the consecutive sentence for the violation of bail bond and the extended term  and that's what he deserved he deserved to be extended term he disfigured this man he disfigured this man because the man had the audacity to honk the horn because the defendant was blocking traffic and the defendant then hunted him down and beat him with a four foot metal pipe broke his arm in two places and then he took a blender picture and he ground it into the man's face after he broke it over his head those acts deserve an extended term and he shouldn't be able to get away with it because he violated another law and fled the jurisdiction more quickly you are going on josh and you answered with regard scrutiny scrutiny is always attached and the avenues for appeal on that the one fifteen motion that you know to do to appeal that then the direct appeal then the that it forces the state to expend additional funds but it wouldn't have to and is it a remedy yes it could have been done in this case just like the state could have filed a new petition in powell thirty days after the defendant's entry should the defendant should the tail be able to wegg the dog here should the defendant be able to tell the state that they have to proceed this way because he was clever enough to avoid capture while the ten year statute of limitations ran out the state of washington in clark  washington found you know in a situation where impeachment using a prior conviction for impeachment it's very much like our will it has a ten year time limit and the state of washington refused to allow the defendant to keep that conviction out because it was more than ten years old because he was on the lam for eight years and the logic in clark versus washington state versus clarke applies with equal force here the defendant should not be able to use his bad behavior his illegal conduct to insulate himself from the sentence that he deserves and this court has the authority and the power and should find that tolling is permitted under these circumstances