james kyle james kyles was charged with attempted murder aggravated battery with a firearm and various other firearm charges relating to him and a codefendant shooting an individual in the head kyle's was sixteen at the time of the crime case was automatically transferred to adult court based on the aggravated battery of a firearm charge however that charge in the indictment did not claim that he burst personally discharged the firearm mr eventually pled guilty under a cap plea with the range of six to twenty five years for the aggravated battery of a firearm count and was sentenced to twenty one years old soul filed a motion to reconsider that sentence that motion was pending miles filed a pro se motion to withdraw his plea have new counsel appointed and raise various claims of in effect of assistance of counsel trial court then allowed mr to withdraw due counsel was appointed however no proper crinkle inquiry was done he pointed counsel later withdrew kyles pro se motions and move forward with the motion to reconsider sentance trial court then denied the motion to reconsider sentence but told kyle that he'd served his ability to challenge a sentence and the voluntariness of the plea even though he did not file a motion to withdraw his guilty plea this appeal raises three issues the st is whether or not automatic transfer was appropriate here the automatic transfer was based on the aggravated battery with a firearm charge but the indictment did not allege that he personally discharge that fire  did have in the attempted murder charge count state that he without a codefendant did shoot someone in the head and it's recognized that the courts will look at the indictment as a whole however here the aggravated battery count did not state that he personally discharge that firearm but rather that he and a codefendant discharge a firearm just one firearm the nd issue is about the supreme court six  admonishments given to mr kyl's he was told that he did not need to withdraw his guilty plea in order to challenge his sentence while this appeal was pending the illinois supreme court's decision in johnson so that it can be given the proper admonishments under johnson the rd and final issue is a critical issue here there was no significant critical inquiry and no real interchange between the trial court and trial counsel what mr kyl's filed his pro se motion mr cowles raise various issues including that he would only receive ten years in prison that his lawyer had a conflict of interest that he did not discuss with him whether or not a bench or a jury trial and that there was an affidavit from a codefendant that mr kyl's that he did not give mr kyl's the firearm court noted that h received this motion but then just essentially allowed regional council to withdraw did not a question him about these allegations it's not a question mr kyl's about these allegations is recognize  some courts have held that appointing to counsel does satisfy the crank will inquiry but here the new council did not present any of these claims and in fact withdrew the claims but did not file an six o four certificate at the time and the problem then is we don't know what merit there is to these claims and there is no record to be able to challenge these on appeal under the nd district's decision and people be remanded so that he can receive the property managements and that any critical inquiry can be conducted on the record that i will relinquish my time and invite any comments or questions from the court th days to file a motion to withdraw your plea if you want to challenge your side and the defendant did not do that within thirty days the i mean that's a fair factual that's correct and i understand that i understand the issue with the case aws and all but the defendant was told what he had to do under six o five c and he didn't do it so i'm trying to figure out the significance of the subsequent judges minus one of the defendants you want to call that made the point after thirty days the defense out of the box why is that not incorrect why is that why is that wrong at the time the law in the nd district appeared to be that you did not have to file that motion to withdraw that guilty plea within thirty days johnson change that so st admonishments one or arguably incorrect under the law at the time and two it was difficult to say that kyle's should be blamed for not following that within thirty days when he was represented by counsel who filed a different motion and it would be our position that by filing that motion to reconsider the sentence it would toll the time the normal thirty days that she would have to counsel withdrew the motion but there was no inquiry of mr kyle he did not object he didn't say i don't want this to happen but the issue is also with the chronicle counsel not filing the six o four certificate there's no certification that any mentions of error have been reviewed and there was no nothing on the record about why that was actually withdraw r the issue is because of those of pro se arguments there is no because there was no inquiry there's no way really to present those there's no record but in no way does mr kyl's wish to abandon those arguments  he was just merely asking that the remanded for those arguments could be fleshed out but the only people that now would be very difficult if it's just based on a pro se affidavit without any sort of great man please a court council that i hold on behalf of the people of the state of illinois senate st argues that his judgment is void because the automatic juvenile transfer provision it didn't apply to him cynthia di  charging him with aggravated battery with a firearm didn't state that he personally destroyed the firearm here in the state alleges that the defendant discharge a firearm defendant's argument is merit all nine in that case our supreme court held that whether a person is tried in juvenile or criminal court that's a matter of procedure it's not a matter of jurisdiction that case out with the gang transfer provision and the court held that it merely removes the case from the judge sitting in the juvenile division of the circuit court to a judge sitting in the criminal division hence the lower courts are courts of general jurisdiction and the juvenile courts are simply divisions within the circuit courts thus in this case there was no divestiture of jurisdiction the circuit court retain jurisdiction over the minor and the automatic juvenile transfer provision simply dealt with procedure nonetheless the language within the indictment was sufficient i would like to point out that this is the st time defendant is raising this issue on appeal therefore the relevant question is whether defend it and did not charge a codefendant with attempted st degree murder and in that indictment it alleged that he personally the word is included personally discharged a firearm that proximate bodily harm to the victim hence when you read the documents as a whole defendant was put on notice that the state was charging them with personally discharging a firearm moving onto argument to and regards to the fix the price i would like to point out that the defendant is not alleging that the admonishments were insufficient he is alleging that the time in which they were given were in was insufficient he alleges he posits based on johnson that six be given at the end of a post sentencing motion at at the end of the denial of the post sentence in motion but the rule is quite clear six o five the admonishment must be given at the imposition of the sentence it's straightforward clear it's on the big you it now here the trial judge sentenced defendant to twenty one years imprisonment immediately afterwards the trial court gave the sixty dollars piscean managements and nothing in dover johnson suggests alters the rule that six of our c admonishments must be given at the time a sentence is imposed and further at the end when a post sentencing motion is denied johnson does not suggest that reviewed the allegations with independent motion and the talk or even ask the defendants whether his relationship with the council should be terminated the defendant had the opportunity to respond and state what he had to say he simply said counsel and defendant this satisfied crinkle now defendant takes it one step further he also argues that he received ineffective assistance of appointed counsel and i would just like to clarify a point appointed amended motion to reconsider sentence and then file the six report the certificate confirming that she reviewed the record both from the trial court proceedings and from the sentencing proceedings but nevertheless defendant claims that she was ineffective for withdrawing a pro se motion i would like to point out that the claims raised in that post a motion concerned concerned post conviction claims they concern matters outside of the record and defended concedes and his reply brief that he could not have briefed the issues because the record there's nothing in the record to flesh out these these claims and appointed counsel had the same record that opposing counsel ha appeal and both of them decided not to pursue these issues now the issues concerned in the process in motion whether plea counsel misled him to believe he would receive a maximum sentence of ten years at eighty five percent that's outside of the record there is nothing to support that allegation defendant also argued in his pro se motion that newly discovered evidence asserted his actual innocence because  identification of the shooter again that's not in the record the one issue raised in a motion that was on the record defendant claimed that there was a conflict of interest between play counsel and a potential witness but in regards to that claim i just like to point out that the defendant waived any conflict of interest and november th two thousand and fifteen hence that issue has been corseted since the defend explicitly waived any conflict of interest the record shows that appointed counsel bigger if pursuant to dover pursued the available course of researchers really a recourse available to the defendant she pursued the motion to reconsider sentence bigger asleep at the hearings and ultimately it was denying she satisfied her responsibility as appointed counsel based on the state's brief and the arguments presented here in the people of the state of illinois request that this honorable court affirmed defendants judgment and sentence and with that open to any questions justice that's a poor way to phrase it but she had two wolves or obligations one was to take over the case and obviously pursue the motion to reconsider that she has wits and file that she thought that was appropriate but   motion you know didn't go forward with any of the pro se claims would it not have been eyes a bull for her to somehow put on the record that she had reviewed made more sense in abundance of caution to a death point say i'm not going forward on the critical part of my appointment and decided that this is not something that we should do and i'm just going to go forward with the motion to reconsider should why wouldn't it make sense to require that at that stage so that any crankily issues are no longer in play oh absolutely it would have it would have made my job on appeal let's less were easier and therefore there's no speculation absolutely solitary should make their best efforts making a clear and consistent record but that doesn't necessarily mean that she didn't review these claims and what the record does i would agree and i think we would all agree that typically claims outside to record lawyer misconduct things like that are deficiencies in their conduct typically happen in a post conviction context because that's the end result was he was removed from the case that's what my interpretation of the whole purpose of a crank will incur is i don't know those for the purpose of of arguing of a point counsel arguing he was ineffective assistance she he provided ineffective assistance of counsel what's the recourse you get a new attorney and that's what happened here with let's assume for the sake  that the attorney did not follow up with the as that had recanted in that circumstance that is something that a crank woodturning could use as a basis if they chose to file a motion to withdraw a plea maybe it would or would not be successful but i mean there are steps just because a new attorneys are going to have to crank up doesn't mean that that new attorney should not to some of the ineffective assistance of counsel issues it's appropriate to do so at that stage that that is an option an attorney in that situation could pursue is it not and that's why you can ignore the the language included in that certificate stated i have made any amendments to the motion necessary for the adequate presentation of any facts in those proceedings and it also states that after she consulted with defendant in route and review the  i appreciate that thank you sentencing hearing the language is pretty clear i have made mine and on the motion necessary for the adequate presentation of any defects in those proceedings so i would argue that there is a very strong inference based on that language in the six  motion to reconsider that had not been ruled on so that would be my my position now that i have time to reflect and review the the proceedings and the argument thank you conclude that what was her rol them up she filed a nd amid a motion to reconsider sentence that's what she made that was a crinkle issue no no the chronicle in korea ended once once and once she was  just to clarify she did not raise any of the issues raised in defendant's pro se motion which that is that is what happened yes i can confirm that ok so along you can to you continue with the case right but if you have no non privileged issues then your obligation is to withdraw correct i feel like i feel like the obligations are obligation an attorney at the crank will encourage representing the defendant had this had this obligation but after it ended the whole it ended with new counsel being appointed she continues with that satisfies johnson however at the time of those original admonishment for the peers that this law allowed for defendants to file a motion to reconsider and it would just put kyle's in a difficult situation if at that time if he's allowed to file a motion to reconsider if he had to file a motion to withdraw his guilty plea instead he'd be having to give up his right to file that motion to file a motion to reconsider and to secondly about the crinkle issue the state keeps citing that there is no record to support the claims are that's precisely why there is an issue here is because there is no record to address these claims at any point and the significance of that in terms that you did review the record talk with the counsel talk with her client and determine that none of the matters had to be raised implicitly yes so and four days certificate in november however she withdrew the motion to withdraw the guilty plea back in october and did not file or certificate then now this could be just my lack of experience but i did say in criminal courtrooms for ten years i've never seen a sick so poor district to begin filed before the conclusion of the entire case i've never seen one filed when a particular motion was withdrawn so i'm just not familiar with that happening and it is somewhat unclear and just sort of anecdotal at one time with withdrawing someone's motion to withdraw a guilty plea and we did file a six thousand and forty dollars certificate that you hear on and as you should do that i have not found anything on that it would be our position though an appointed counsel withdrew the motion to withdraw the guilty plea that either she should have said because this is so therefore i have to step down or at least present something on the record about why it is being withdrawn because without that so there's a general case law that says you know if the right to counsel wanted and determined that to review the record in speaking with counsel that there's nothing except privileged matters that that counsel withdraws but yeah you saw what make a lot of sense in the context of our case where there are this lawyer appointed not solely for crank oh but to represent the defendant in general and she still has to go forward on the motion to reconsider sentence so not going to withdraw in the typical sense tha on for the motion to reconsider a little bit of form over substance and i'm going to agree with you that she should somehow alert the judge that i don't think i'm no longer going to pursue these matters and i thought about it carefully and talk with the  i mean does he have to say the words i'm withdrawing and crinkle counsel but continuing in another capacity that seems a little formulaic maybe however without anything on the record we're just sort of left to guess here about are these claims frivolous are there merit to them and there is no way for him to proceed on appeal on those issues because there is no record i think you