is whether there is proper calculation of mr mallory's length of commitment and the third issue is whether he was afforded effective assistance of counsel if you bear with me let me give you a brief overview of these have valuations done by d h s s within thirty days and after that time and hearings to be determined whether the quit is need of treatment either outpatient or inpatient and mental health code governs the supposed to quit or pursue so unless there's a direct conflict with the kernel code for impatient friends or commitment a person the court must determine if the person's reasonably expected to inflict serious harm upon himself or other and this is required because of process concerns and the state must present clear and convincing evidence prior to this commitment and furthermore case my client there's no denying that he is suffering from a mental illness my he was in jail he had delusional beliefs of having actually zillions of children and that he was engaged with the cia disciples let me give you a brief time frame of where he was so he was convicted and sentenced to the illinois to perm of come corrections for period to conclude on april twentieth two thousand and twenty so he was first sent to dixon at dicks and he committed he threw water at a prison guard was charged with assault then he was transferred to pontiac which is this case which happened in two thousand eight where he construct a shank and through water then because of the dixon case in lee county he was then transferred to the custody of the department of human services and this is the key part he was transferred there october first two thousand eight and then he was transferred to mcfarlane where he is presently in in the custody of the department of human services since january eleventh two thousand and ten so in lee county case where in dixon he was found and not guilty by reason of insanity and the court determined that his theme day is fifteen years and six months this period of confinement but that it will start from may third two thousand and seven and then they set his theme day the maximum period of his confinement starting at the end of his g o c commitment so starting in twenty twenty and ending in twenty thirty three in the beginning as you all know since this is an issue whether or complied with the statue it's a subject to date novo review and so the first issue of whether this is a proper hearing of the that the standards you probably don't know you don't have the record i have a copy of the minute we're here ten years if you could direct me to the i think i have trouble finding any written order of commitment yet there was is whether there was a proper determination mr maoris period of commitment as i said here the trial court began his period of commitment starting on april twentieth two thousand and twenty the end of when his  custody expires instead of running it concurrently with october first two thousand and eight the date that he was transferred to the department of human services so in this case he was transferred to d h s in this case october first two thousand and  mcfarlane so so and do yo see is considering the clock running so they're not stopping his d o c time serve while he's in mcfarland your client was found not guilty by reason of and the state seems to have agreed yeah that's what happened and we have to go back and do this over again right there they have to do that at least at the commitment hearing over again the state disagrees on the period of time  whether it should run concurrently or consecutively after his deal see commitment so what relief are you seeking from this court given this situation we're in where the state is agreeing with you that he was in chess in the hospital and not starting at twenty twenty that's your question right when it's under your theory let's say why wouldn't start from whatever date of commitment she enters rather than a  recount a date that's what i'm having quite a while yeah i mean i guess you could do i mean that's all term of that the date of the commitment to department of human services my problem with this is they're putting it thirteen years in the future his commitment right i'm just focusing now on your start date which you said was should be october first but it was transferred to be a chest but that was in the leak ownie case right she says he still hasn't been properly transferred to d h s under your theory in the state's concession in this case right so it seems to me if if we accepted your argument on the theme day it should start whenever he's committed to d h s in the case in which he's being committed which is the  yet there's some case law though that they receive credit for time served prior to the commitment because it does take what he got in this case and so he would get credit for any time up to the time it's actually committed but is there any case law that you could find you know in this case if he'd been sentenced convicted and sentenced his sentence would have run consecutively to the one he was serving right could you find any cases that involve a thing date  in a consecutive sentencing situation where there's a couple cases there's one case the language of the section is if you commit a crime multiple crimes and one and charged right let's say murder in peru you can only be the thing they is for it's runs concurrently so it's only for the most severe crime the maximum crime so there was one case that was committed two different crimes say charges are all in one case and if you look at this this course actually he was charging two separate crimes but they're doing it actually concurrently because they're not doing two separate student better so let's say he becomes better under department of human services and they just charge of money goes back to prison does that mean in twenty twenty he goes back to d h s i mean that's that's a problem  here also the statutory scheme looks at the present present person's current state of mind they commit the person because he's currently mentally ill so it's starting  thirteen years ahead the commitment period really doesn't it doesn't really match the statutory scheme and also the purpose of this is to treat the person's mental illness so he's currently in make far you know to starting it then if he gets well it goes back to g o c under this order he would still go back to mcfarland in twenty twenty even if he's well at that time so it just really doesn't make sense if this case gets remanded back to the trial court for a proper command been hearing are you going to be representing your client in the trial court no it will be in the public defender and that's my third argument that there's really not effective assistance of counsel i think the really needs to be you know i'm happy that these public defenders get than not guilty by reason of insanity because the person receives treatment serving partial ration but there's really no addressing they think that's the end of it and there's really after doing these appeals there's not that much advocacy after they get the energy or i hear i call it the potted plant they were you know did i mean did the public defender really do anything for them are you for a lesser time or starting crew perfectly or even have a proper hearing to come we don't see these cases harry often so is there no way you can represent the defendant back in the trial court are you not permitted to do that yet that's a different county from our area because of limited resources there's only six of us and they see i mean if for point at that but you do you corresponded talk to the public defender if this case goes back we have we're trying to do education with like actually the illinois bar association mental health law committee last years session was on this from all issue and enjoy because there's just so little training and i can do training for public defenders action in the fifth district but what i'm saying is this is your client on appeal he's going to have a different lawyer back in the trial court to pick up the phone and talk to the lawyer in the trial court and say hey take a look at this issue here is the cases you might want to argue this yeah i will i will do that i wish i feel calls actually become i hate to say the guru on this minor issue and i feel calls from public defenders on this and i think why there needs to be there needs to be guidance on how to do these cases i understand correctly one of the difficulties with regard to the dates here is because this crime was committed the crime of which he was found not guilty by reason of insanity was committed in the penitentiary so had he been found guilty of time the clock on that second sentence doesn't begin to run until he's completed the sentence he was then serving isn't that right right so the question then is if that's the rule with regard to a straight conviction what's the rule with regard to determining how much time he shall be committed to the department of human services as a result of his finding of not guilty by reason and celery right and what's your and it's concurrent so he's and also the statue is for the current mental state so if you just commit him twenty years in the future that doesn't make sense because it's his current mental convicted of aggravated battery and sentenced to the penitentiary and you are given a consecutive sentence that doesn't even begin to run into your current sentences over you're stuck with that whereas someone who's found not guilty by reason of insanity has the opportunity does he not to have his custody reduced and also mentally even released before even his know i'm sorry they're sick he's going to spend time till twenty twenty the issue with is whether he gets credit for his time in the hospital whether runs be released twenty twenty so it's not going to be less than twenty twenty and his original sentence that he was in there for would have been completed prior to twenty twenty no no it would be complete oh i thought it was so he would be completely twenty twenty two minutes counts i'm sorry for before you get too far down the road for the benefit of the audience what is a theme day oh i think i'm sorry and the theme day is the maximum now a person can be committed pos determination that someone is found not guilty by reason of insanity so it's half the time of your maximum sentence minus credits serve so it's because you have minus one so you have to commitment the one confusion though is they call it being a person's people versus thing but actually if you look at the statute it's a period of commitment not date of release i think our use of the word same day mcneil me please court counsel counsel so the major issue in dispute here is defend is the end date or maximum period of commitment and that is outlined in section five to four b an fact that things were not handled appropriately at the trial level pursuant to case law yes i would add that had the d h s s reports that are on in the appellate record here had they been entered into evidence and there some semblance of a finding of fact by the trial and that both sides did stipulate to that evidence which is allowed that it could have been used to establish by clear from its of evidence that the defendant wasn't needed in patient treatment however none of that was it seemed like it was a rubber stamp kind of kind of deal here which there's plenty of case law which defendant cited that says that that won't do especially since there's no no writing no written order or findings of fact on the record here but as for the theme they don't want to say that because it's easier than maximum period of commitment on them let me ask you this question for get too far and the fifteen year commitment yes does he get day f day on that yes in the actual maximum sentence he would have gotten would be thirty years so the fifteen years is that it's giving it a yeah yeah because what i'm having trouble figuring out is he was scheduled to be released in two thousand and twenty on as of original sentence correct from the d n c and then in in twenty twenty a level he's getting a fifteen year commitment let's say it runs concurrent right that's also why doesn't it go to twenty twenty six yes i think that there was this happened quite a few years ago and i think they're taking in pretrial taking into account pretrial custody they gave him one hundred ninety two days so he gets one year so you don the fourteen now but that's an actual fourteen is the maximum commitment whatever it would be fifteen years from the the finding of energy are i here or finding of need of in inpatient treatment the the actual statute in the pertinent part the exact language is if the court finds the defendant subject to involuntary admission the period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve had he been convicted of and receive the maximum sentence here there's no question that defendant committed this offen while he was in the department of corrections and that it's mandatorily required that any sentence in the department of correction be serpent's consecutively the court noted this when calculating defendants the him date and the maximum period of his sentence and the maximum period of his sentence you said this thirty years right correct but the theme date is half that because of the day write a good credit and then when you're being committed you're not being sentenced would you agree with that correct but the the maximum period of commitment correlates to the maximum sentence of the defendant which everybody said was thirty divided by half is fair game but what you're saying is there's no dispute between i think we both agree that the on the period fifteen is just whether runs consecutively concurrently the statute what is the language that tells you it runs consecutively the their language is that it's the maximum length of time defendant would have been required they serve ok the maximum length of time he'd be required to serve had he been convicted of an receive the maximum sentence here the maximum length of time would have been till two thousand and thirty three because the sentence has to be mandatorily consecutive he committed the offense in the department of corrections does it make sense to you that you would defer a commitment for mental health reasons i think the legislature equated i think the legislature we have to presume equated the maximum sentence someone could get with the maximum period of commitment for a reason one one would be to turn us in this case not well he was remember he was acquitted correct isn't the court required to have hearings every so often yes other times sixty days i believe every sixty days yes and they don't wait til twenty twentieth's start having hearings do they know he would be considered in treatment now i think he's in mcfarland now so doesn't that give you any pause i don't think so because as i said the legislature made made the statute  correlate to the maximum sentence that defending could have received for a reason there's more to there's more than one purpose and in deciding a defendant needs to be in in need of involuntary admit it mission sentencing makes sense under the circumstance where you're dealing with somebody who was acquitted by reason of insanity and in need of treatment found to be in need of treatment does consecutive imposition have first degree murder and natural life would be the maximum sentence he's still being treated apparently a court pursuant to statute the maximum length of time would be natural life he's not being treated the maximum sentence for that offense correct the maximum sentence for this i think he's not going to be committed for natural life if he recovers right directly or they'll be released same here that would be the same situation here but the maximum the maximum period of commitment has to correlate to that of the maximum possible sentence defendant could have received by the plain language of the statute but every sixty days or six months or whatever the timeframe is reports are being made to the court the court's reviewing but you're saying is not even committed yet because the period of commitment doesn't start until twenty twenty that just doesn't make so i'm saying the maximum period of commitment doesn't end until two thousand and thirty three the maximum period in this case pursuant to statute pursuant to the mandatorily consecutive since the defendant has to have it does not end until two thousand and thirty three so if he's if he's treated now this has to be taken into account that it's not just  ts aren't defendants treatment that is the only purpose here it's also the protection of society and that individual from his potential dangerousness that's from people versus younger men a case being committed for longer than fifteen years correct but that was the maximum commitment period you said no the maximum commitment period is thirty but with that date for a day is fifteen but since it was has to be served consecutively you have to take into account to defendant's already existing sentence all right but you've told me that in the meantime he's committed to macfarlane reports are being made she made an order of commitment or didn't in this case but should  so his commitment technically could run more than the fifteen years correct that you've told me is the maximum period of his commitment i said the maximum sentence he could have received in terms of years is is that's the most directly on point case not door exactly on point but the most directly on point because that in that case in this when a defendant was in the department of corrections committed an offense and was found in g r i although the hundred six eighty seven could you say that again yeah two thousand and eleven will at four one zero zero six eight seven so if it's cited in defendant's brief time it in retrospect i would have emphasized it in mine but it wasn't directly on point but it is the most directly on point case that there is definite sides no case of holding the office there's no case that holds the defendant who commits an offense and  are you sound issue wasn't even raised on appeal and yes but the this court does state in views that as a matter of obvious fact it would run consecutive to defend its commitment period would run consecutive to his already existing sentence and again the the people versus younger men states that the commitment required by section five before the current code serves two purposes allows for the treatment of the individuals mental health and for the protection of society and that person from his potential dangerousness the legislature presumably considered these these purposes both of these purposes when equating the maximum sentence possible with the maximum  maximum period of commitment likewise a legislature made some sentences mandatorily consecutive just like here for the in the committed the offense in the d o c so this would be disregarding the legislature's intent lessening both the treatment of the individual to the treatment the individual receives for this mandatorily consecutive sentence as well as lessening the the potential dangerousness the protection of society and that individual from his potential dangerousness and and as as counsel said this is a man who's been in and out i think sixteen offenses he's been in and out of the mental health system for many years so this court should recognise the plain language of section five to four and c kin cannot just send someone to d h s there has to be a commitment order so if you think about the one in the other county in this county he can you know if it was a normal sentencing he would still spend time and you'll see and then a commitment but do you do you know see you can only they can't transfer someone to d h s there has to be a commitment order just to clarify there has to be reports every sixty before twenty twenty also you know the key part is i think it's the use of the term date this is not sentencing it's just a period of time he needs to be committed and the period of time under this we both agree would be fifteen years he's a ready and you test serving that you know commitment time you know i think i'm not expert on sentencing but i think concurren different situation and but they thought of the situation when someone commits multiple crimes at the same time it's concurrently it's because you're only treatment for the maximum most serious crime his current prison sentence in two thousand and twenty right if the fim date comparing to a commitment started to run when he was actually committed and let's put aside the good time credit let's just call fifteen years  wouldn't he be in longer than his original sentence yet he would be until twenty twenty two instead of twenty thirty which they did that might even be longer than twenty twenty two then but i thought i'd ask you that you said no he only twenty six a piece never make well right you mentioned that you wouldn't be counsel on remand that there are a lot of these cases and so i was just curious how dates i see social workers actually calling public defenders and saying hey you messed up on this thing day so d h has social workers to know how to calculate it better so that's why i think there needs to be clarification and sometimes they put the whole period sometimes that have sometimes you know it's really him big u s not ambiguous area but it's just not that well practiced and you know i think