use as bludgeon was not an arm violence category b offense weapon therefore the elements in this case are not identical there has and this has and still is our position throughout this litigation legally constituted a dangerous weapon under aggravated a hijack you can take to defend his claim this does not morph into any knowledge meant that the same weapon constitutes a category three armed violence elements test itself is an abstract test designed to compare elements of individual substitute offenses because h c a is not attached to any individual substantive offense there are no elements to compare by definition this abstract identical elements tess is incapable of measuring anything other than substantive offense elements it can become a prior criminal history the absurd further proving the fallacy of defendants are human the class was intended to measure the internal relationship between the seriousness of an individual offense and the specific penalty that the legislature but it is not the penalty provision that triggers the h c a it is the class x conviction that triggers it even if the seven to thirty year penalty word for it in this case defendant's class conviction remains intact and still triggers a ca this is so because by the very language of the closet self it only applies to penalty provisions it cannot be used to undo a conviction o classics conviction for aggravated vehicular hijacking remains intact and valid and because it's his third class sex conviction it triggers a ca this court should therefore reject these arguments and we verse several other problems have resulted from this interpretation namely the application of the class beyond its intended purpose to resettle in this provision was and this is cases coming to good conduct p to the legislative or ten minute inactive the only one statute and it resolves all the problems identified above now with respect to the maxims of constant saturate construction the current interpretation permits t so the why should we agree with the defendant's ergometer every every argument that you've made and have made is precluded either by a decision of this court as a result of what's happened the past or a prior position of the state is taken is the wrong to its earlier understanding all of these all these statues would be valid to our violent statute would remain valid and it would be in keeping with the legislative intent that is clearly revealed irrespective of the people's prior position which we now admit was incorrect and this court should examine whether these cases such as should be  sentencing on the class one offense of i'm filings was improper it encroaches upon the exclusive prosecutorial function of choosing what to charge and prosecute it a coach's upon the legislative function to modify the charging instrument on appeal defendants proposed remedies that he change the class also violate separation of powers because a class designation is not just not just  sentencing range as it is the legislative determination of the seriousness of an offense it is based on factors said that only the legislature is equipped to address such as a commission frequency of occurrence actual harm to society that classification is the legislative determination of the seriousness of that offense in separate and distinct from the penalty provision and  distinction is born of the language of the cause itself the class says that the penalty must be set according to the seriousness of the offense so alteration of the class or the invalid part disproportionate part of the sentence even though it's probably more pickable because it also addresses a difference in in the minimum sentencing ranges but any remedy that this quote the people submit that any remedy this quote chooses for a case like this may not be suitable for other challenges that  the remedial attention in the ad hoc remedial problem with this announces results from the interpretation of armed violence in the people's estimation and and all of these problems identified in this risk which would lead to invalidation of multiple statutes and sentences them to determine whether or not they have identical elements crack your ass has now to do something else so now look at this defend his criminal history background and to factor in his criminal history background pronouncements of the legislature and i think we're directly within that you're looking at the elements of the two offenses and we're looking at the effect of these of the background of the battle from the left but we're not a is is a lie by what the a perk or actually to that the traditional analysis and full stop at the seven to thirty year aggravated penalty profession based on conduct and it has no statutory elements it is not attached to any particular subset of offense it applies when certain conditions  recently that the people are never required to charge a lesser offense if we can prove the greater sense which we did in this case at trial reasonable doubt in and in fact the disproportion aggravated vehic perfectly was never applied in this case the proportion penalties class specifically the identical elements test cannot by logic and and  not what the people cited in support it's just the fact that cummings found that the identical elements test could not apply to the with respect to your question just as ties whether it's a facial challenge is in proportionate penalties as this court recognized him player those are when there is a finding those are those sentencing  specifically applied to freestanding recidivist provisions but if that's the that that's what people feel it's incumbent for us to suggest that to this quite that it reconsider its interpretation of iron filings because under the current interpretation that is the case if there is no criminal background and any number of substantive offenses arm robbery with a bunch of aggravated scheme so the people are very concerned that all of the convictions this one class acts crimes committed with bludgeons are at risk under the current interpretation of  forfeited that argument in their court louis doesn't apply here because in lewis the firearm was as a matter refused no your honor the stake have the quote but this quite stated as a matter of law no matter how the bludgeon is used based on statutory construction principles it's not an iron violence a weapon and simply rely on the cruel and degrading unconscionable aspect of the proportion that's an interesting question i saw it the constitutional debates and i know that when they were debating this clause the framers intended it to operate almost identical that that's what should actually happen because it's based on the intent of the framers and i think that it would be eliminate this invalidation of all these other statutes and it predict now defendant says that make is not important it is a first stage plus conviction case but it's a sign of things to come and who would imagine when this court said in christian lows that it was based on sound logic that it would be used to apply to good conduct provisions that aren't penalties at all but rather a grant of a legislative favor