agree with the state issue before the court today was was that playing or that due to the trial console not objecting during the sentencing hearing it is well established in the state of illinois that the to object to a claim during trial this or however it is also well those that wish that when there is a question of plain era or that the rights of the party is substantially in jeopardy that a reviewing court may look reviewed the issue in the martin case and people be martin the illinois supreme court found that when considering an improper fact or an application in a sentencing it is clearly affecting the defendant's fundamental right to liberty and impinges on their right and not to be sentenced based on improper back further the mark court held that it is not necessary for trial counsel to o factor in sentencing it is a clear era and it does affect the substantial rights of the defendant and the case of mr jackson would agree found that there was an exit there was not an existence of a weapon because they found him not guilty of armed robbery rather just this is they found that there was that indication of a weapon being used which is substantially different than the existence of a weapon being rude nature and the violence of the offense and lou of sentencing him to probation which the court held that it was deprecate the seriousness of the crime i the court sentenced him to six years it considered that we aggravated robbery versus robbery unit in this case however because it puts emphasis on the left and the the existence of a weapon we don't believe that it was a slip of the tongue it actually took mr jackson was in the statutory range that that was not that that is not the law is not a not just to say that a sentence because it is within the statutory ranges for miscible if it wasn't that will be boy there's a difference when you're talking about how the sentence because you have to consider the mitigating factors that was presented at the court at the time such as the fact that there were five witnesses that testified on behalf of mr timothy jackson one that he was an assistant fire chief in his town he had no violent criminal record whatsoever beyond his family obligations which are qualified in the statute that should be considered the financial har p of the family he was taking care of some of his grandchildren and also had extended family members that he was financially taking care of he was also employed an employee a ball he had one of his employers come up and speak on his behalf the fact that he had a lack of a criminal history but due to the fact that the trial court considering that a weapon have been used in a forcible felony it is our position that it then went on and you believe that mr jackson is entitled to having another sentence in front of a different judge to be ok for you to let me ask you about some decisions  simply say something wrong to be given the opportunity to address that and you're you're right you deserve what's the big deal here we can always raise no case in the sentencing matters where the president can say hey look at this this is bad i was sentenced the trial court made a mistake so even though i did comply with the statute even though i didn't follow read i want you to  pellate court review the claim precise in his claim where we are arguing you're hearing an argument over what in the trial court mean what was said what was the reason for it when  reading this language now from these decisions had the president raised in the trial court we would know explicitly however justice by not allowing the appellate to ring the case before be under an obligation to be familiar with this case law that's come out of this court in distinguish eyler rathbone and hansen among other cases all which have been decided in the last six years essentially rejecting the various on the very are correct however by not revealing it by having the forfeiture which in this case and supreme court cases help these are still good lawyer on it would not it would be a grave injustice not see here his bring by this court not hearing it because of forfeiture that's why this exception was made for the for th come to in a moment there is also the fact that in the defendant's initial brief they didn't even acknowledge the forfeiture so by not acknowledging it there was also no plane air argument that was made i pointed out the forfeiture and i raised the burden that is put on the defendant to make a plainer argument as an exception to that or future in my parade and in doing so i also then was put in the position of crafting a plain air response to what i suspect the plain their argument in the reply brief would be doing that because this rarely actually resolves the case on forfeiture issues and if i don't resolve it in my main very and address that i don't get a second surprised that you don't have more of a recitation about how these cases have consistently stood for this proposition and that this is something that as we've written and i think we have cases some of that that put the defendant more notice an appeal of the pig you know we got this but if you saw you might be in the wrong district because we've specifically rejected some second district interpretations from years past or been on more notice especially it's not my job to put them on notice of what their argument is i'm here to respond to their arguments and to any questions that has but again to any sort of thing on my part i certainly apologize for that i would agree that the issue has been before but if martin did make the hold as counsel said however martin the facts were different in the sense that the trial court there had repeatedly stated that the death of victim was going to be considered in sentencing evacuating it was even included as i recall in the written order on the sentencing that is not the act that we have a plea here also martin in no way did away with requirement to follow up with a motion even if it is found to be impractical at the time that the trial or to speaking of sentencing to interrupt them on what may be misunderstood or not clear so i don't think that martin requires that forfeiture should be excused and again i still believe closeness of the evidence that the evidence was closely balanced and here the evidence was not closely balanced and a reading of again the main brief the reply brief and my recollection of arguments made to day there hasn't been an assertion that the argument that the evidence was falsely balanced even here today if you look at the evidence on the one hand you have the candidate and he testified that he did not take the best he testified that as to  he did not ask for the vests and he in fact testified when he was asked so did cowman remove his best he said no he did not say he said i had nothing to do come didn't threaten him didn't asking for the best didn't take the best he didn't take the  he said with the with mr baer that he did take the vest or that he asked him to take the vest off but to keep the vest and not wear it until he was contacted by the president of his motorcycle club that's what you have on the defen side on the state side you have as the trial court found video evidence and witness testimony that completely rebuts all of that and that testimony came from not only the victims and the spouse of one of the victims but from one of the mid west percenters members as well all saying he did request the best from both not just one he did take the vest with them additionally we have surveillance from a bank a video camera the list on surveillance from the bank and it shows that following the confrontation you can see mr cowan's motorcycle going by and he is bare from the waist up and this is consistent with the testimony from the state witnesses prior to the confrontation mr cowen had his best on but he was not wearing any clothing or shirt underneath it there's a confrontation again he was told to remove it the best was taken and this video from this bank analysis you have whether the courts misstatement deprive the defendant of a sentencing hearing i would argue as justice holder white mentioned it was a mistake and as we stated and acknowledge our grief it was incorrect but if you look at the record as a whole immediately prior to the trial or its making of them a statement the trial court properly identified all three of the propositions that the jury was required and did find to find the defendant guilty of the aggravated robbery and those were that the defendant or one for who he was legally responsible knowingly took property from the victims did so by use of force or by threatening the eminent use of force and did so while indicating verbal e or by his actions that he was at the time the trial courts the statement immediately followed this correct recitation of those three propositions that have been found and yes he said there has been the so the record in this case shows there is the existence of a weapon being used the proper statement is there was the indication of a weapon being used but that did not result in plain air first of all unlike the two cases against cited by defendant he did not repeat this misstatement over and over he made the trial court made the misstatement and he made it once and that was it it was not a focus of sentencing further if you go and you look at the summary immediately prior to the in that summary he mentions a class one felony as you are brought up justice for the right he mentioned specifically three things that he was looking at having considered everything but three things that focused in the trial court's mind those three things were it was a crime of violence there was mitigating evidence and the court acknowledged there wasn't any dispute as to the mitigating evidence and the all the about and three that the probation officer said if the defendant was sentenced to probation there would not be any services that probation would be able to offer nowhere in there does the trial or bring up again the existence of a weapon or the misstatement of fact that there was an indication of a weapon the trial court then sentenced defendant to six years which was well within the four to fifteen year range and it was half of the twelve years that the state was sitting so on the record that we have i simply don't believe that the defendant has carried this burden to establish plain error with this misstatement and again there is no argument it that mitigating evidence showed the positive character of the defendants but the trial court found it did not warrant the sentence of probation or less than the six year sentence that was imposed in so ruling the trial court specifically noted again that if he were to accept the defendant's version of the accounts every other witness that testified had to be wrong and he didn't again they didn't support that the testimony of that evidence corroborated the state and so for the defendant to be the only one bright was not correct he also noticed that the trial that the defendant had been for fifteen years a correction officer may have been an alderman he had been a volunteer fireman and at fifty six years of age the belief was that this gentleman should have known better than to react as he did for being disrespected and that was his defense that these gentleman had he was the only one who allege th go he had been so disrespected that he went after these gentlemen and the court found that again he should have known better and that added to the seriousness of the offense finally in the record and based on the evidence that came out at trial it showed that this fight the fact defendant here had been working in and horsemen for fifteen years when he was confronted by a fellow in forstmann officer and he was ordered to put his hands up and to get on the ground he had absolutely no respect for that authority authority that i would suspect as a correction officer he would require from the people he was responsible for for caring instead when this officer with a gun man it was a rifle and he said that it was in a low ready position which the officer described as loaded safety off but aimed toward the ground with this officer with this gun in this stance ordering repeatedly five to six times raise your hands get on the ground instead of obeying or respecting that authority he challenged it he purposefully walked toward this officer the whole time baiting the officer and taunting him with pardon the language you are you going to shoot me when he finally got on the ground it was only because the officer had raised his gun from a low ready position to aimed directly at the defendant's head and that's when the defendant got on the ground but he still continued the taunting saying i hope you have a nice house it's going to be mine or i'll play your little game now it is both the starving and ironic that this gentleman who had been so disrespected that he just pursued confined and robbed two people for merely driving through his town while belonging to a rival gang had so little respect for this officer and that certainly is something trump was allowed to consider in sentencing him not to probation but to a low six however this is not a case of a sentencing judge using a element an element of an offense as an act repeating factor this is a case of scene tried using as an aggravating factor the very thing that or jury had just equated the existence of a weapon being used in a forcible i don't believe that the facts of this case but we don't know that well we do know that a fellow whose conduct was unworthy of his life story and in violation of the law that sentenced two years more than the minimum on a probation of bill offense because the judge did say that he found there was the existence of a weapon being used in a forcible felony that's what we know everything else is yes i don't want to cast whether or not the judge man what he said and the judges if the judge said it and said wrongly and i think we all agree that the judge was wrong that the existence of a weapon was used in the commission of a forcible felony i'm paraphrasing not wel think that the record supports our claim that mr jackson was denied a fair sentencing hearing it due process violation i understand the stack i bakshi written about that statute th statute that requires it of sentencing we don't have one in this case but we do have a drug using as an aggravating factor the presence of a weapon when a jury found there was this is deeply probably it's within the range and of course where arguing under supreme court rule six fifteen before is that you should reduce the sentence that was imposed reduce the punishment in the language of  the rule to suggest that because a sentence is within the sentencing range prescribed by the legislature it is not excessive sentence of six years two years more than the minimum of non probation sentence for this man was he in fact a sentence greater than necessary and proper all of those reasons we would urge you to r