morning honors the morning they please the court and gavin dow from the office of the state appellate defender and i represent the appellate in this case mr daniel click on page twenty five of its brief the state concedes that mr and sensing him to twelve years were also void similarly because mr flick was not eligible for drug court the plea agreement by which he pled guilty in exchange for placement drug court was void to furthermore it's agreement in this case mr slick remains ineligible for drug court to his background and since that's the only term of the plea bargain there's nothing the court can do to put the parties back the only option is for this court to agreed to plead guilty in exchange for placement into driver purposes of supreme court rule was negotiated for the purposes of supreme court rule six zero four d i'm not sure that it was and the reason for that your honor is there was no agreement as achieve by that what did he hope to achieve by being placed in drug court i'm sure that he hoped to achieve ultimately the disposition of the case i mean can you be more precise in other words when he got into he was in the drug court let's assume he successfully completed what he hoped to achieve as a result of the successful completion i believe at that point what was going to happen was that the case would have been discharged and it would have been done why do you think that that's based on the discussions in the record about the plea agreement which are relatively thin that seems to be what it was that the parties were talking about that the drug court remeron or the drug court order signed by the court explaining what the consequences would be what the results would be of the defendant's successful completion of dru maybe i might be missing something and i believed that what was happening was that if you successfully completed drunk drug court that the case would be discharged well the first question is does the statute require that the drug courts that does the statute require the discharge of the yes and no i don't believe it does and to be more clear about what i'm asking about if if you put on proceedings against him or her of the original prosecution meaning that that's possible but there's no guarantee of it as there is in all the other consequence under the drug court statute yes yes but more specifically in this case there is a written agreement the defendant signed that was entered by the judge setting forth what the guilty plea agreement was and focusing specifically what if he successfully completes a this is what the plea agreement in the order of the court says i understand upon successful completion of the drug program my case will be set for sentencing and successful completion of dru all this drug trouble into a bit of the serious offense classics drug offense and our only promise to you is if you do this well and by the way one of the other benefits he got is he was released from jail he's sitting in jail on a class x and it was released from jail to produce paid drug court for the promises up to thirty six months if you do this well our promise to you is it shall be viewed as a mitigating factor in sentencing so even though he wasn't eligible for drug court technically didn't the have wasn't a afforded the benefits of it in fact because he was never well once again i don't i don't think it it matters because the drug court order was void but further beyond beyond their part of the sentence here why was it void it was void because he was not eligible to be in drug court under the drug treatment act well he going straight to his compliance with all of the things we want him to do so that when it comes time for sentencing on a six to thirty sentencing range he could argue that our could argue for the that's not what the court did here because of the court did here was there to the drug court program ok and what is the drug court program did the drug the trial judge did did he indicate that the the defendant was going to be entered into a drug court program that was compliant with the drug court treatment act i'm very curious about the drug court program itself that is referenced in this case here the defendant pled guilty but sentencing was  deferred the drug court treatment act really contemplates two different scenarios either a deferred prosecution where the prosecution stays the charge while the individual goes through a rehabilitation program or the defendant pleads guilty or is found guilty and is sentenced and the sentence is to drug court probation in the drug court treatment act those two so really we have some hybrid where the defendant was operating under some conditions and maybe there were conditions of bond but this program as i read it doesn't fit into either category here so what what would prevent the trial court from simple a doing what judge steiger and was referring to earlier and enter various conditions of bond that would replicate what might be done in drug court and that necessarily would not result in a void order but once again your honor i'm not i'm not sure what might or might not prevent that it's not an issue obviously that's discus adjudicatory would involve sentence that had previously been entered and when you read through this this is where i'm just not sure what happened here the state moved to reinstate criminal proceedings in the criminal proceedings were already in criminal proceedings what they were doing is it can do a violation of probation a kin there was no probation have it here right because mr flick was purportedly in drug court well that those two aren't mutually exclusive here drug court typically evolves probation in the post adjudicatory program so an individual is sentenced to drug court probation then if during the course of the period of time the individuals in drug court he or she violates the conditions of that drug court probation then they the prosecutor can go in and move to reinstate criminal proceedings and there would be a petition to revoke the drug court probation but that's not what happened here  with you indicated arguably against your position and you went on to distinguish on that i want to commend you because i think that's a very professional way to handle the side cases that we might very well come across anyway and  then he didn't receive the benefit of bargain because he never was eligible to get the benefit that's something that couldn't happen but  here the question is why didn't he receive the benefit of his bargain where his only promise was we're going to watch out for two to three years will give you an opportunity to demonstrate you're now a better guy because there is after all this twenty four year range from six to thirty years of the crime to which you pled guilty and if you demonstrate it then you can argue for the minimal sentence as the court said and he signed in the sand and successful completion my case will be set for sentencing and successful completion drug court show be viewed as a mitigating factor in sentencing to put another way had he done a wonderful job for these three years and had this case come up for certain saying and the court said well based upon this and now we're going to impose the minimum sentence here as opposed to the twelve years which is god the change wouldn't he receive the benefit of the bargain there are two reasons for that here the first thing i want to point out is one of the reasons that mr slick received a twelve year sentence in this case was for his conduct in drug court that the judge considered the time that he couldn't receive the benefits because because he couldn't be put into drug court in the first place but he had been put into this my whole point let's go back i should assume he everything happened just as a did the only change i'm making is three years he's now you know candidate from the same to he's done everything just wonderful he's drug free he's been terrific got the better of a bargain you know i suppose so but once again that's not what happened here because what happened here is he went to the court put him into a drug court the whole point was that he was going to get to go to drug court legally that wasn't available and are you arguing that if he had successfully completed drug court there would never have been a sentencing hearing is that what your argument is based on the facts of the case well yeah that was that was my understanding of what the remit was now it's clear that not understanding that your honour's all share so that the court didn't say that if you successfully complete drug court i will consider that as a other and say you're going to be in the drug court program were to the court didn't talk at the time he pled guilty about what the consequences would be other than the written order the resented and the fact that the statute everyone seemed to a so part of the problem may be that perhaps the defendant is counsel hoping the prosecutor from turned into a real prince over three years would do the right thing and say judge we don't have please court counsel counsel this is a case about a defendant who received an additional benefit as part of his bargain with the state he should be stopped from challenging it although of beneficial provision of defendant's agreement with the state was an authorized his ultimate sentence twelve years as a class sex offender was appropriate because defendant's ultimate sentence is not void and he failed to file a motion to withdraw plea or reconsider sentence under rule six zero four d after before of the drug court act there's little question about that however just a statement asked the following question what did he hope to achieve in this case i don't have to guess it's in writing paragraph four of the coles county drug court participant agreement track two guilty plea admission of p t r and this will go to justice harris's inquiry about the track this drug court took in this case the defendant signed the following agreement and the judge entered it as an order which the state concedes inform is void i understand that upon successful completion of drug court program my case will be set for sentencing and successful completion of drug court shall be viewed as a mitigating factor at sentencing that's the benefit of his bargain just a statement further noted earlier during the defense presentation that in fact the defendant got the benefit of his bargain isn't that what the supreme court talks about when they cite the us supreme court when we're dealing with cases involving plea agreements that i like to stay closer to home justice turner wrote in people vs gregory in two thousand and eight that plead grima it's may only be withdrawn when there is a quote unquote significant deviation as justice turner wrote from the agreement and the promises made by the state not only was there not a significant deviation in this case like the supreme court case and donaldson the defendant got everything he was entitled to and more let me ask you this mr robinson could in this case could the defendant have completed the drug court program and i'm going to put quotes around all of that completion of the grove court program because it says the program or program would be for a period of thirty six months let's say he goes through thirty six months doesn't have a black mark on his record during that period of time it proceeds to sentencing and the trial court sentencing within the range of sixty to thirty years sentence soon and sentences him to thirty years could he have done that absolutely it's what the syncing range and as part of the agreement what he was promised because at this point we're we're working in a world of legal fictions because he was not entitled to it one of the things that we discussed in working this case was the idea of we understand that he got the benefit of his bargain in this case and it's somewhat problematic that well you know he did get sentenced of this the sentence was appropriate but my goodness it sure seems like the court considered some of this in aggravation and mr dell brought that up in the opening and that seems problematic at first blush but in fact this is totally appropriate let's say for example in an extreme case where the defendant gets this track to probation i'm sorry track two drug court program and he's not technically eligible for going to the statute as we have here but while on that drug court release as part of the bond not as a probationary term he commits an armed robbery he's found with additional methamphetamine is the court not permitted to consider that of course the court consider that the court can consider anything the defendant has done in his life prior to sentencing as long as it's not contrary to supreme court rule or statute and here had the defendant engaged in some sort of other criminal conduct the court could unquestionably have considered that similarly here the defendant received a benefit to which he was not entitle it was a gift he got an extra opportunity over two years the state expended enormous amounts of time effort and money to permit him this benefit that he was not entitled to and he squandered it the court was absolutely correct in not only considering that but folding it in and saying you know this is an aggravating factor nevertheless your honor unlike your hypothetical the defendant who in this case was a class x felon for essentially possessing and working a motel methamphetamine lab got twelve years and a six to thirty range with four hundred plus days for credit for time point earlier section thirty five b of the drug court act itself says regardless of the track the trial judge is not bound and for purposes of sentencing by the drug court agreement in so far as dropping the charges the the section thirty five b specifically says upon completion of the terms of the conditions of the program the court may dismiss the original charges against the defendant experience trial judges yeah that's part of the drug and how do we how should we handle that i think i'll surprise you your honor i don't think you should this case is sui generis for a reason most judges and attorneys are fluent in the drug court it's a relatively new program they try to use it in coles county in this case they have a two track program which goes to justice harris's point it gets complicated because if it can take a bifurcated path in this case the defendant was not eligible because of a two thousand and three aggravated battery causing great bodily harm it's my belief that in fact counsel and the judge in this case merely thought that that was an aggravated battery in reviewing the record  the charges that the defendant had previously been convicted of were written that were handwritten and my recollection is that there was not a great bodily harm ad on well in hand the problem is it's supposed to be a bad joke to say as a last resort let's look into the statute here it appears since it specifically provides that someone convicted a very great battery causing great bodily harm in the statute which isn't all that big is that eligible for drug court to raise the issue on appeal of the propriety of the sentence he would i think i know where you're going your honor the savvy make this a non ego shaded plea than correct that's correct ok and justice turner brought this point up at the beginning it doesn't matter for purposes of this case but as an intellectual exercise i will point out that neither was filed here but in this case i think what we have to stay focused on is a think the state was a little misleading in  sentence as void at any time we have no quibble with that essentially we were using jurisdiction with a small j to say you should review this under rule six zero four d d because the defendant hasn't filed the necessary documents and going back to what you students that are here today the first three sentences miscarriage defense counsel do you wish for me to have the circuit clerk file a notice of appeal for me to appoint the appellate defender's office this time please your honor so or no problem here there's no rule that says if a defendant is satisfied as i believe they were in this case with the ultimate sentence twelve years with all the time served day for day credit on a class x methamphetamine possession charge there is no rule that says they must file a motion to reconsider or withdraw their plea if they don't want to do that what what what where they are porting the pope from there for and what was to be appealed at this point good question your honor as defendant points out and state concedes a point sentence is always appealed so but no one knew at this point you know you're right no one knew anything about avoid certain judges but as you know this is always the case this is why we have a defendant's right to appeal in the state a learned defense counsel learned prosecutors a learned trial judges to make mistakes the appellate defender is appointed to review those cases where for example  they do a wonderful job but screwed as they are the only issue there are entitled to raise is if they discover there's an argument this sentence was void of the network and they rate arguments related to ineffective office actually filed an amended notice of appeal to keep this thing going in under of people versus with that sort of the distinguishing jurisdiction factor following in re william him but let me pick up on the next  the court would indulge me this is garrett defense counsel then says your honor do i have to file a motion to reconsider i get so confused about this what counsel saying here is we don't want to challenge the sentence i know there are only six of forty cases floating around there's all this craziness involved in this do i still have to file as a perfunctory matter a motion to reconsider sentence i get confused about that the judge says look if there's an error in sentencing i suppose you do i think you can attack the sentence itself on appeal and the judge is right if it's a void sentence you can attack it on appeal mrs garrett well go ahead and appoint the appellate defender if they think we're premature god knows they're not shy the court will let them know all right now i can see that the court finds this argument to ring a little hollow i believe that's what happened here but you don't have to take my word for the united states the illinois supreme court in people vs wilke discussing an issue this is a case that defense counsel cited for a different proposition in the six of forty context said that if you are concerns regarding this exchange need be assuaged the appropriate this is a quote the appropriate remedy lies in our post conviction hearing act so in other words if you don't accept my reading of this and you think it's more likely that defense counsel's reading of this is appropriate let's say it's ninety nine percent him one percent me this is still better raised in a put in a post conviction petition going back to just this third question moment ago about  expense effort that they put into doing everything possible to get this individual back to a place in his life where he could take care of his children provide for himself provide for his  i think that he would your honor if we agree with you that the conviction is not void the sentence is in the void for the reasons your are you why shouldn't we give him the opportunity to go bare and get a new six honor he did he had the opportunity to file that and i believe that that exchange with the trial judge reveals defense counsel did not want to challenge that they were satisfied in a six to thirty range for a classic sense with a twelve year sentence with the credit for time served day for day the second part of two to your point those issues can be addressed in defendants will surely follow defendant's petition under the post conviction hearing act wherein he can call counsel and if necessary the trial judge read the statement to them and say what did you mean by this were you confused about your obligations despite despite having just admonish the defendant under rule six o five in open court in front of counsel who handles these cases regularly it is difficult for me to believe that counsel and the trial judge were both confused were happy as a matter of judicial race for this court to dismiss this case with some instructions for the trial judge to allow defense counsel if the defendant and wishes to file a motion to withdraw plea or or reconsider sentence before you run out of time i want to ask you a question that unfortunately for you takes you put you back in the position of explaining the trial court proceedings you have been to but prior to the sentencing after the defendant was in the drug court program the state files a motion to reinstate criminal proceedings and as i read the briefs there are filings defendant minutes allegations contained within that motion to reinstate what is the significance of all of this what is happening what if the defendant had denied the allegations and we have a guilty plea and a conviction and then we have a sentencing set but in between we have some sort of hy what they have going on in coles county is what they call track one and track two drug court i think what happened in in this case was they were trying to put defendant on track to drug court which because of his criminal history they were suspect of his ability to do it so what they tried to do is say we're going to make this merely a mitigating factor sentence go back under the drug court act reinstate charges frankly in speaking personally over the last couple of days with with the state's attorney of cols county if they had this well this wasn't an esoteric issue you know my primary concern right now those is trying to figure out is this something that is governed by the drug court treatment act or i understand your point you're on with the reason that the state didn't push that issue and i and i didn't push it following your question earlier today was that it's a difficult position for the state to take when our when our agreement with the defendant cites the act i felt like we were in a position where i can't disavow the act and say that this was just a drug program that he was in for fear that in front of this panel i would be discussing that for first of all the agreement absolutely was for mr flynn to be put in a drug court program i think that's clear it's clear from the agreements pleader from what the parties were saying so that that is what they were trying to do and under the drug court problem with that kind of an argument is that it gets passed the idea that mr flick could be in drug court as a legal matter and as i said earlier one of the things that happened at sentencing is that what happened when he was purportedly in drug court was used as an aggravating factor but if we had followed the drug court treatment act in this case i think it's that never would happen there w ould have been nothing there to aggravate his sentence to twelve years i also wanted to clear up one other matter about mr flix actions during drug court even though he did several things that violated the agreement that violated the terms of drug court first of all he never once tested positive for any drugs second of all he didn't commit any crimes he didn't go out and commit an armed robbery he didn't deal a drug he didn't possess a drug all of the violations were violations of the rules of the program and those are absolutely violations but it's not as though he was out causing mayhem when he was under a court and i just wanted to make that clear now as for the admonishment issue which the state discussed during its argument the truth is you guys we don't know what mr flick and his attorney may or may not have wanted to do because the trial court cut him off at the pass because right after reading the six o five be admonishments the trial court said ok if you want to file a notice of appeal right now it was contrary to the advisements it contradicted what the trial court just said and it's surprising to me that nobody at the hearing apparently recognized that but that is what happened and it's also abundantly clear that ten seconds later when the trial court was discussing whether you had to file a motion to reconsider the sentence before you could fil don't have to and it was wrong that was exactly contrary to what the court had said just minutes before so i think it's abundantly clear that mr flick was missing miners in this case a state brought up but the w case and in wilkie it does say that a remedy for this kind of a problem might lie in the post conviction hearing act thing is after will the state supreme court decided foster and then foster what it said is management's not giving in mind schmidt's that's procedurally unfair so you have that kind of a procedural unfairness you apply what is now called the admonition exception you send the case back down to the trial court admonish the defendant and then you give him the opportunity to play with will six of forty so the postcondition hearing act is is not is not the first reaction here