the first piece on the call this morning excuse number one one nine five six one people versus right and gender number eight ounce already you may p mr chief justice it may please honorable court i'm assistant state's attorney john walters and i represent the people of the state of illinois in a matter before you people with respect as this court to adopt the same substantial that time this court has had numerous opportunities to develop the law with respect to rule for two which is a sibling rule which addresses all the same policy considerations that rule for one address and therefore this this court should you should use this opportunity to to employ the same wisdom that it has used in addressing rule for two and apply that to rule for one that is so who we know the standard is that we're how substantial compliance has developed has evolved with respect to rule four zero two some of the same considerations that go into that analysis still remain obviously the most important is in the very reason that these rules exist is to ensure a knowing and intelligent waiver of six month rights and nothing that i say here today is meant to sever that requirement from the substantial compliance test i want to reaffirm that we the people are very concerned treated by this case in several ways this this particular case in the appellate court demonstrates some problems that have developed in rule for one else's in why it would be a spectacular argue to apply the wisdom equated a mere flaw in an in the admonishment with a lack of substantial compliance in the problem there is that if substantial compliance is not only the name of the test but it's an independent factor an independent prong in court then simply because it had equated a mere flaw in the admonishment with a lack of substantial compliance decided that the it waiver was was not knowing intelligent it did not look to the record as it should have it should have looked to the record because this is the very purpose for these rules to ensure knowing an intelligent waiver and oftentimes the record itself is very evocative it elicits on its own whether the the accused has knowingly and intelligent it did not abandon its duty under this rule one judge in the circuit court it monitors this defendant on the very next court date a different circuit court judge took it upon himself to really monitor this defendant to ensure that he made a knowing and intell as if the sixty years was the maximum so the technical mistake had no impact on the sentence ultimately the judge himself made no explicit comment on that point i would point out  the prosecutor in addition to saying that the the maximum seventy five the prosecutor argued that the that the maximum that the prosecution was seeking in this case was sixty here so want to fact the prosecution was saying that admonishments what went into the defendant's background was very concerned about compliance with rule for one but the every every other aspect of rule for one was complied with in this case part for the flaw between sixty and seventy five years but looking at that this is a defendant who was thirty seven years old he was thirty seven years old at this time and what he was admonished was he could he could have a potential sentence of sixty years now maybe for some defendants the difference between sixty and seventy five years might be substantial but when you're thirty seven years old and you're told that the maximum sentence that you're facing could be up to sixty years of her thirty seven year old offend that might might well be the rest of his life in prison so the difference between sixty and seventy five in this case was quite marginal there's no great abyss or goals for this particular to find it between sixty and seventy five years this defendant is i said in all of that all overstocked will for one was strictly complied with strictly complied so this defendant knew had sufficient information at the time that he pled to make a knowing i'm sorry at the time to waive counsel had sufficient information to make a knowing intelligent waiver now with respect to the argument about well if the next sentence might have impacted the judge one thing to take into consideration is that the prosecution again  case at sixty years putting a cap of sixty years if it's really true that we need to look somehow to what the judge is thinking it's not saying with respect to rule rule for want to forward to admonish once the fact of the matter is that the prosecution or recap the value of the case it's sixty years but more important than that what really more important that is it's really not the issue we should be looking to what the sensing judge might be thinking what's really important here is that the that the defendant ate his has sufficient information at the time of the sentence greater than what he had been told is that it if further demonstrates that this defendant was not misled in these of management he was not prejudiced he was not misled into making an unknowing or unintelligent waiver in this case now i mentioned before that there were there were multiple errors that the public court did it in in attempting to comply with the olds the sort of the old standards of a rule for one i mentioned before quitting substantial compliance sort of turning it into a rule for compliance ignoring the record with respect to whether the into whether the waiver was knowing intelligent but the third prong of that is really really also very concerning in this case he appellate court on its own  is is almost as if hermetically sealed has developed a body of law with respect to prejudice that is really independent of this court's analysis this court has always repeatedly said with respect to both rules for if it's somehow shown that the defendant knows the proper sense of range in only in that circumstance now that the pope's words subdivided into two different possibilities but it really amounts to the same thing did the defendant somehow know the correct sentencing range it's very problematic first of all again it's not it's not the standard that's been set up by this court this court has considered other factors in looking at whether the defendant has been prejudiced whether real justice has been denied own this court is considered whether the defendant received a sentence that was within the term of the admonishment that were that were given this court has looked to the record to to see what were the reasons that the defendant we the sixth amendment rights in the first place did they hinge on the improper admonishment in that case it could it could well be argued that the defendant would have been prejudiced by a misleading admonishment but in  this particular case and in so many other cases of this court especially with respect to rule for one this court has looked to the reasons the rationale for waiving rights in his found that when those wills when that ratio has nothing to do with the  given there's no prejudice on so this so this body of law developed it has its roots in a case called people first is read it was decided even before people versus jobs johnson was the first of the four cases that dealt with rule four one read was in a poker case that it was decided well before johnson in this body of law that the only way to prove that there can be no prejudice it is if the defendant knows the exact sens on that developed with before johnson was even decided in there's never been any attempt to reconcile this view of prejudice with this court's view of prejudice no attempt at all has ever been made  court applied the substantial compliance test in this particular case and that's one of the reasons why this presents an outstanding up to for this court to apply the wisdom that it's that it's clean over the years and in applying rule for two cases to rule for one and again these are these rules and the native they originated as the same rule they both exist for the same exact reason which is to ensure knowing in intelligent waivers of six amendment rights and all of those rights all those rights in the six months all those rights that have been duplicated in our home our constitution in one nine hundred seventy there are fundamental rights and the right to self representation no less i want to talk about that fundamental right in exact one real list of things that a defendant must know in order to to waive counsel in order to proceed pro se just the opposite the record in front of this report fred it was very concerned that there not be substantial barriers to a defendant who chooses to represent himself however foolish that might be that this report was concerned if they're not be substantial barriers set up so that a defendant is not required to have technical legal knowledge in order to waive counsel all that all of the court fred are required is that the defendant even made aware of the dangers of self representation so that his choice to waive is made with his eyes wide open applying rule for one to this particular case there was there was substantial compliance here this defendant did make knowing and intelligent waiver of his right to counsel the looking at the admonishments it is i presentation he willingly undertook this offer presentation knowing that he could receive a sentence of as much as sixty years in he in fact received a lesser sentence than that so in this particular case real justice has not been denied it's the fourth to stand with the defendant has been prejudiced and whether real justice has been denied this is a case about fairness and about real justice and in this case what fairness and justice dictate is that this defendant did should have affirmed and not revers mean please a court beats row for eugene right the parties here greet the purpose of rule for a one day is to ensure that there's a knowing waiver of counsel on the record the question is whether knowledge of the maximum sentence is required for that knowing waiver or think more specifically here can there be you know we waver when the trial court under states permit if we misrepresents the maximum sentence that the defendant faces are we even  came after this court determined that there wasn't a waiver the i think it would be it would really just negate the whole purpose of rule for one day because if you look at almost every single case cited in all the briefs there's two reasons defendants waive counsel one is to demand speedy trial and the other is dissatisfaction with counsel so i think if we were to adopt to rule saying well the reason they waive impacts on whether there should be annoyed waiver would essentially just negate the whole requirement for well i think when we talk about prejudice in the context of for a one day the prejudice is whether there was a knowing waiver if he was if there's if the record shows that the waiver was knowing for instance what happened in coleman where the trial court mistakenly misstated the faces so freddo saying that the eyes and diffidence i need to be wide open when making his decision that's part of what he needs to know and you know counsel sort of rather they didn't lay out a whole series of what needs to be if the record shows that the defendant knew the correct range despite your own he said managements that i think yes the court could look at the record like you did in coleman and johnson and find that despite your own you said mushers there was a noise where there was no requirement it was that of a mandatory reversal the defendant stated reason i think for what it is is different as far as you in one important regard it's not a perfect to protect one of the most fundamental rights if you all other rights are protected the right to counsel and would have defended waste counsel if you look at the admonishments that happened here the trial court very clearly stated when you waive counsel that said you can't go back if you find yourself in the middle of th trial and you feel if you're overwhelmed you're on your own so at that point when he waves it's a very dire decision of course is his right with the trial court has a duty to ensure that he doesn't know in the sentencing range it's very different than say four o two or six o five when you have a defendant represented by counsel agreeing to sit guilty in exchange for a certain sentence and then trying to come back on appeal and say like people have mccoy what you didn't tell me about  released the state suggests that whether it's ninety seven or it might have been great but a hundred and whatever the other fifteen years on top of that at the end the day this and it was a war that he had a potential effect a life sentence of well in this case is a fifty percent crime so he would be ninety something you know he would be out so i do think that yes in some cases i would put that under the category of yes some de minimus if the defendant told you're facing a minimum two hundred years and he gets three hundred something you know yes but this is a fifty percent crime so it wasn't like he was looking for a defacto life sentence here regardless of the sentence and so yes i think in some cases that could matter in this case no because i think if you look he was not based in fact a life sentence and fifteen years is a significant difference from what he was told he i mean i think the purpose of will rule for one day is to remove these doubts i mean it's got to be on the record and i think the state's proposing to test it i'm not sure i understand exactly how we would arrive at determining in each case whether you know if we're going to start trying to engage in guessing games of well with a definitive way if you've been told this or if you've been told that that's what you would rule for when it was designed to prevent is to make sure that this is on the record to remove all doubt that it doesn't say that it was automatic reversal for noncompliance but if the purpose of the rules not been fulfilled if the defendant doesn't otherwise know since you are a she faces then yes that should be reversed i think i think the test is a much more straightforward and simple task i think it's in holding with this court's prior decisions in pays and johnson i mean in those cases it was clear from the record that the waiver was known because of other things that happened during the proceeds i think it's a previously i don't think it's appropriate to start looking into all these other things about defendant stated reason for waiving or whatever the fundamental question the threshold or the court and we all had to happen is what happened at sentencing which is to inform the defendant of the actual sentence the range he faces that did not happen in this case i think the appellate court's decision up holds the some things i think you know also should still be the same in that what we have to look at when a defendant waives counsel is what did you know at the time he weighed you know the state points of the sentence he received but  here of proving beyond a reasonable doubt that mr morgan possessed a firearm the codefendant during this robbery did not meet that burden in this case for two reasons the first is second the only reasonable inference from the evidence presented by the state and the defense at this trial is that the b b gun that was found where mr morgan was known to have discarded his weapon was the weapon that was you that was the item mr morgan possessed during this crime yes standard questions here and so that second point you said that the only evidence he was this was a young how did the jury rejected that wreck you know with your court still has to look at the evidence to make sure that the state that it burden and in this case i mean if it's almost borders on the absurd to think that this b b gun somehow was unrelated to this crime i mean i think if this was if that had been a real gun and the state would have used it to convict mr wright of armed robbery with a firearm i don't think any body would be making an argument oh well that's that was not connected to this case so as you're saying no rational cure would have said this gun was discovered a week later has no fingerprints there's no physical evidence to tie it to the to the  in his waistband when he left baker's where mr wright mr morgan were approached by officers and took off in different directions somewhere during the chase mr morgan discarded this idea they could not find the gun that night because of a lot of snow if you look at the two days later there's a gun found in the gutter about a block away from the restaurant in that case defense counsel didn't even make an argument that that gun couldn't be tied to the crime because we know i think the state points to  on the sidewalk or by the curb it's going to flee the police which is exactly what happened in this case so i think it's just it the only reasonable inference is that this even gun was item that was used during this crime i also think beyond that the brief view of the handle of this item would not have allowed so i think when you put those two things together it's the state did not meet its burden on that element now i guess your said that the jury did find it i think there was two other not believe is a waiver of the evidence that he tried to get introduced it is in this case i don't there's no idea there's no his chosen strategy at during closing argument or during the instructions congress does not w your honour's defendant's position with respect to in order for there to be a knowing and intelligent waiver and the only way for that to be the case is for the defendant to know with precise knowledge the exact term sentencing is not the law has never been a law either in this state it is not the law of the land i said before that friday versus california was a leading case on software presentation defendant sites to a far older case that's not the law of  why there's a there's a number of reasons first of all that the opinion that he cites to from a plurality opinion not a majority opinion and it's never been adopted by the us supreme court it mentions a lot of things whole laundry list of  have never been adopted but besides that the grounds of decision involve had to do with the fact that the defendant in that case was a german american being prosecuted during world war two for  treason there was some concern that that the defendant the defendant did not receive fair proceedings indicative of that was there was some indication that the defense has been promised counsel and that counsel was never good to the defendant in that case and the only legal information the defendant received in that case came from an f b i agent in a legal legal information if the idea was dubious was apparently possibly incorrect at that for read it had the opportunity because it was the later case to adopt the reasoning of final it did it did refer to final key there's a c f citation that i recall seeing in it did not adopt it was not informed by the plurality decision involved it was very clear that technical legal knowledge is not a requirement to the to the exercise of the right saw for a presentation that in fact it need happen is that the defendant be made aware of the dangers of self representation on a very broad statement not a specific statement delineating exact precise knowledge that is exactly contrary to the of the land it's actually contrary to the court's head of cases that this this court decided from kid i'm sorry from johnson to kid which is always required just a stance of compliance in every one of those cases there was a flaw in the sentencing range says the view was brief it's important to note that the manager of the bigger square in this case had not one but two opportunities to see the gun the gun was flashed to him two times not just once and more than that he had the gun pushed up against his back so he not only saw the gun twice he felt it in his back he had experience with fire he had experience with with automatic firearms he had gone hunting with similar weapons he was one hundred percent sure if this was a firearm his his testimony was corroborated by the server who was also very familiar with firearms and identified this fire this firearm as a far as weapon was a far with respect to the b b gun it was found a week later i take issue with this with the statement that the defendant makes here i think it goes too far does not it is not fully supported by the facts he says that it be because it was founded an area where the defendant was known to have square to the point where they are on esta street and officer sirin cion it has both of these individuals in his in his view the entire time until the time that they split up in a codefend the mini mall parking lot that he loses contact to sit just to see that the area on the street of s the street is the area where defendant was known to have discarded the weapon i don't believe that is supported at all by the evidence in this case because that i discarded the weapon by funds there's no fence by the street speaker where this fire was found so even if it is contrary contradictory to the evidence that came out of trial defendants when viewing the evidence in  three statement to be admitted there must be an unavailable to clare now that did come about in this case but after the fact after the fact that it came into court invoked his fifth amendment privilege against testifying at this point witness defendant then had every opportunity to seek it mission of the statement under eight zero four p three and under this court's rule it did in therefore abandoned that issue for decision by th court in fact it's contra it's really contrary to the defense but that the find it reads defendant's defense was is is my point is point i was an all or nothing defense it wasn't all i'm only guilty of the lesser offense of robbery he fought against that being an issue in this in this trial he was very much was convinced of his own innocence and wanted to convince the jury of that fact you know the questions of people respectfully request this court firm defend