good morning your honors in may it please the court my name is charles return on from the only tourney general's office on behalf of the people we asked the court to reverse the judgment of the appellate court and reinstate the twenty four year sentence in this case the sentence was the or this court applies in reviewing a sentence second that the trial court did not abuse its discretion in imposing a twenty four year sentence because the sentence is not it sets it as it is not greatly at variance with the spirit and purpose of the law nor manifestly disproportionate to the nature of the fence and finally i'd like to touch upon the defendant september third motion to strike a portion of the people's reply brief which the court is said that it will be taking with this case first the s review it is important to note that this interview here is not just abuse of discretion but it is one that is gives great deference significant deference to a trial court determination of a sentence and the reason that there is great  ence given to a trial court's determination of a sentence is that there is more than just the traditional fact finding of weighing witness credibility in weighing the evidence instead the trial court in fashion his sentence must do more the trial court mu stronger pine and give weight and give specific choice of what weight to give to specific sentencing factors the trial court here had to consider not just the statutory aggravating and mitigating factors as well as the non statutory aggravating and mitigating factors court also had to consider the seriousness of the offense the need to protect society as well as the fact of the defendant's character including his the potential for rehabilitation and these are rather general open ended qualit considerations including his general moral character his mentality his social environment is habits and his age and furthermore as this court recognizes in reviewing court a court on review this a court of the appellate court is limited to the cold record as courts often say there is a cove record under review where the sentencing judge has before him not just the individual the defendant in person but he gets to live with the case for several years here in the sentencing judge have this case from pre trial through trial to sentencing in the second sentencing and he saw him was able to observe the defendant on several occasions the defendant testified at trial the defendant was at the first sentencing obviously and then the defendant spoke at the second s and so you have here a great difference given to the selection of a sentence because ultimately it is the sentencing judge who must peer across the bench and look at the defendant and try and figure out any need to not only rehabilitate the defendant but also protect our society and implement the policies of the general assembly what is the appropriate sentence and that is a function that is inherent to the sentence in court so turning to the facts of this case there is no abuse of discretion because the sentence here twenty four years is certainly appropriate and it is not an abuse of discretion and drawing upon the scene in our view we must remember that this court instructs that in reviewing the sentence he corpus cautiously unsparingly  it's reviewing power now we're going to send the standard here is one of the sets of this in terms of whether the sentence is great need for with this purpose the spirit and purpose of the walk or whether it is manifestly disproportionate to the nature of the  trial judge here found three three statutory aggravating factors while in contrast zero zero mitigating steps three factors and the presence of an aggravating statutory factor counsels for sentence above the mandatory minimum sentencing the judge specifically talked about the age it is a factor that is not given any greater weight than any other factor what i think if i may and i'm not sure but it would think the question may be drawing upon the defendant's argument in terms of juvenile implication where one of the arguments that the defendant made was that if i had been adjudicated as a juvenile i would be out by the age of twenty one were here i'm facing a twenty four year sentence however of course the general assembly has said that this should not be treated as adjuvant he recognized despite making this argument he even recognizes of course he had no right to be adjudicated as a juvenile so he's essentially as we say trying to create a back door to what the general assembly has prohibited for the general  has said that he cannot be duplicated that you've now but in terms of a factor that could be argued general age ability to rehabilitate that absolutely is appropriate and in fact once considered and the judge said that he was considering this and we  appoint the judge specifically said there were no statutory mitigating factors and he just not a statutory mitigating factor but in terms of the non statutory factor the judge pointed out and said in presented this question this is inherently factual determination that is unique to the sense in court of saying i see young man before me who if i think i can give him another chance and he will take advantage of another chance i am willing to give him another chance to turn his life around but on the other hand if he is not going to take advantage of another chance i am not willing to give him another chance and this is one of the pieces this gets the second statutory aggravating factor of his prior conduct any day so it can be at midnight on new year's eve in an otherwise empty school as long as there is one shot in another individual in fact it can happen in a school event it doesn't even happen to have happened on school grounds it can happen within a thousand feet of the school one of the cases we cite in our brief is a drive by shooting where someone shoots at a private home across the street at nine thirty in the evening in that case there was that that automatically gets the class x and hansen and then the judge as  quickly recognizes the judge realized that there's much more and if i may we can start putting in the additional facts that show there are significant conduct above and beyond what is necessary for the mandatory secure minimum so instead of the middle of the night on new year's in an empty school shooting one shot we're here in a school day and it's not just any it's not just the school day when the students are in class but specifically it is between the passing period between first and second period so the students are not in the classrooms the students are in the hallway and also the defendant confronted porter had two shots off during the struggle but then he specifically chased after porter and when he chased after porter there were students teachers and administrators in that home way and to illustrate this not only did he chase after porter but he shot in a rather indiscriminate way there are there is evidence that there's bullet fragments in the floor in the walls and he door frame as well as in the ceiling there is evidence of shots in a stairwell the students are fleeing at this point there's testimony that the teachers are pulling students out of the way and you have gunfire the close of the floor so the wall to the ceiling the defendant is very fortunate in this case the judge talked about this the defendant is very fortunate that he is not facing a murder charge and a much longer sentence and one of the defendants arguments is well i didn't actually physically hit anyone well he got the benefit of the fact he didn't physically hit anyone by the fact he's not facing a murder charge and serious is the fence is i don't believe any every factor can no vision one factor more weight than the other every factor and eat for example rehabilitation potential is not you know he talks about his rehabilitation potential and says that should be one factors and we're sort of jumping through and if i make a backup for second in the sentencing process a judge should first consider the sentencing range here it's six to thirty years so the judge has to impose a sentence within that six to thirty year range then the judge is required to determine the be the statutory aggravating and mitigating factors here there are three aggravating statutory factors in zero mitigating factors bat automatically counsels for a higher sense because there are three aggravating factors in those  on the rule doesn't mention that the really well the route the purpose of the the point is that i was trying even example somewhere where if a sentence is the point the point of the rules if the sentence is unlawful in some way or it's an abuse of discretion in some way the court does have the ability to correct the sentence so for example i believe in jones there's a case where there's an error and the court then said should we remain for a new sentencing or should we impose the same new sentence in our self the court if the court if it finds that there is some type of error then the court this court under six fifteen b does have the discretion six fifteen before does have discretion to impose a new sentence based on the record or to remain but the predicate to that your honor is a question of whether there is an error in the sense in the sentence an abuse of discretion if it is then we had to six fifteen before that's where six fifteen before it comes in in the cases where the court has reviewed under six fifteen before the court fin  who had had an ace several number of prior jury cations in the juvenile head and using the words of the judge graduated to the big leagues which is unfortunate comfrey sometimes you hear that he this is not  first offense or a minor offense but instead he graduated to the big leagues that this is something with the judges very serious about this case and therefore the need for any significant sentence is appropriate final your honors  the court and the defendant make great consciousness of the mitigating non statutory factors of the non statutory mitigating factors but what is important to recognize is that the trial judge considered these factors and again getting back to the court's review aggravating and mitigating arguments from the parties and he considered and heard in the p s on her testimony from the family from a family member the worst news he heard mitigating arguments in terms of the defense counsel he heard from the defendant in terms of a letter and there were number of letters there was a letter from the defendant's mother from an older sister from a minister from a family friend and then the judge actually in the colloquy at the second sentencing asked the defendant about his letter and asked him where the defendant had apologized and said he had learned from his lessons asked him what he meant about that so the defense the judge certainly heard the mitigating arguments the judge in fact talked about how the defendant had a difficult background if he did not come from the best family situation and then again getting back to this point of saying if i think this is a young man who learn from his lessons then i'm willing to give him a shorter sentence but ultimately determining if using young men who did not learn from his prior mistakes and not take advantage of them and  to illustrate every time that he was adjudicated in a court in a juvenile or in a criminal case he then continued with another violation he stole a car when he was thirteen put on probation and then he was deter him from the with your shooting and then when he was in the juvenile detention facility for over a year waiting for trial and going to trial when you would think that he would be on his best behavior if he believed this was a serious offense you would think that he would not be indictment yes you can consider the indictment and it's for the purpose of if you find that the sentence is it's sort of then the question is should you exercise your power getting back to justice freeman's question your power under six fifteen before or whether to remain for a new sentence the indictments would go to the question of at a new sentence those would be relevant in a sense we are not arguing that those go to the question the first question of whether the census assesses or not because obviously in terms of the second point we just disagree about judicial notice judicial note he i are my understanding his argument is that judicial notice is limited to documents that are already in the record but that would defeat the purpose of judicial notice because if it's in the record then you don't need to take you to notice of it and ultimately in terms of judicial notice in all this this is very much a tempest in a teapot we want the court to be aware of the most current information but in terms of we think the sentence is appropriate it should be twenty four years you should get to the question of  incorrect thank you  largely because it failed to consider the teachings of two recent u s supreme court cases that being rubber versus simmons and florida versus graham and it was recently reiterated in graham when she for justice roberts in concurrence described simmons as applying a general presumption of diminished culpability to juveniles i would also note that in his concurrence few justice roberts stated that this concern or this consideration is pertinent beyond capital cases and shouldn't be limited just to those considerations given that roper versus simmons was a capital case that the primary reason that there has become this is new focus on the consideration of a juveniles age and the defendant in this case was fifteen years old at the time of the commission of the offense the primary reason is a recognition in the courts of what  always known that children are different from adults and they're different for three primary reasons and these were discuss a great length in simmons and utilize the gyn graham the primary difference is the level of maturity and it leads to a recklessness it leads thought decisions and actions as occurred in this case the second issue is the susceptibility to influence in this specially to negative influences and part of what concerns the trial court in th situation was the defendant's continued association with other juveniles who had committed offenses who had helped him commit offenses whom he had joined with also the fact that there was an absence of any sort of adult leadership provided for this miner his mother at the time was on probation herself for an aggravated battery he had one brother who was already in the department of corrections at the time of the first sentencing hearing he didn't know how to contact his parents the third difference between juveniles and adults that orders for a lesser sentence to be provided if you're comparing apples to apples to an adult is that a defendant generally has an undeveloped character  he doesn't in fact the brain structure is different and still developing even past the age of eighteen and this helps to explain why when the court looks at offenses that the juvenile committed when he was twelve and thirteen and fourteen years old and didn't apparently learn from his mistakes is because children are still in the process of learning how to learn from their mistakes and when the court when the trial court points out that the defendant was on probation prior to the commission of offense and didn't seem to learn from that didn't seem to to begin to act responsibly when most people would be on their best behavior knowing that this may be their last chance it just goes to show that juveniles don't engage in was said in graeme was that even if the state's judgement that the defendant was in corrigible were later corroborated by prison misbehavior or failure to make sure the sentence was still disproportionate because that judgment was made at the outs t it's a question then about the timing and not later being proved right this isn't a case that can be viewed in twenty twenty hindsight so even worse and the gemmell address later the impropriety of the inclusion of that offense even were that offense to be considered it doesn't impact upon the question of whether the trial court abused its discretion based on the facts and the factors that it had before it at the time of the  three differences between juveniles and adults must be considered in view of the four penalize goals or primarily the four goals and purposes of incarceration in determining the link of a proper incarceration term the first of those is retribution and this leads into the second consideration or the second goal which is deterrence where the question is one of culpability retribution his lesser if the culpability is lesser and again the primary teaching of simmons is that there is a general presumption of diminished culpability hunnish maty isn't as appropriate for somebody who isn't  culpable and that then leads to the second question of whether deterrence is going to be effective and for the same reason that the defendant is less culpable and for the same reason that a defendant has a a lesser sense of responsibility or an undeveloped sense of responsibility the the impact of deterrence is much less likely to have any impact on a defendant or in this case the primary audience that you're looking at are children in school the next question then becomes one of incapacitation and question there is how long is it appropriate to take an offender out of society in general development through the age of eighteen and even beyond that and then that leads to the last factor which is rehabilitation and rehabilitation is what was emphasized boon for the trial court but these other factors must be considered as discretion when he considered the three aggravating factors or the manner in which he considered the three aggravating factors of the seriousness of the offense the impact of deterrence and the prior record of the defendant and i would no it is true that the trial court made comments about the defendant's age those comments tend to show that in fact he did not consider the age in the fashion that i am urging this court to do so and has has been called for in s her and graham porter versus graham and that is that the trial court said that he considered age to go both against the defendant and in the defendant's favor at page seventy of the record in the first son's ing hearing the trial court said it goes both ways in my mind i'm for hold the court said and i'm paraphrasing at this stage that we get too many kids and use the phrase again who get to the big leagues and i think that i'm prepared to go on to society and what that seems to require is that the defendant at the age of fifteen or at the age of seventeen already have developed these character traits that clearly aren't available to a juvenile as they are to an adult into requiring that the defendant have rehabilitated himself and learned his lesson when he was twelve and when he was thirteen and when he was fourteen despite the fact that he lived in an absence of a responsible parent taking or or adult role models to assist him in learning and navigating the system and so it's in this way that the trial court abused its discretion and it's in this way  the sentence is manifestly disproportionate to the seriousness of the offense and considering the seriousness of the offense it's not inappropriate for this court to consider the degree of harm that occurred if there are no further questions regarding the substance then i would like to address the insertion by the state into this reply brief of matters that are outside of the record specifically what occurred is there is an offense alleged to have occurred approximately two months ago and the indictment was placed by the state into its reply purportedly as proof that the defendant is not rehabilitated and the the first matter that i bring to the court attention is as is very clear in fame is not proof it is not proof of anything is not proof of the commission of the offense it is the first thing that a trial judge tells to the jury the indictment is not proof of anything i merely a charge the mere charge in this instance cannot be used as proof of the defendant's lack of rehabilitation particularly given the facts of the case simply isn't it came by in the indictment there were others who were charged defendant was a codefendant the level of culpability in this case or involvement cannot be established but can be overemphasized and can prejudice the defendant when the fact of a mere charge is brought into the evidence before the trial court then that certainly can be considered so it's a mischaracterization to say that i'm claiming that any sort of openness can't be provided but the indictment itself is not evidence but i doesn't have any relevance in it to the extent that it the question before this court well and you're you're a step ahead of that the question for this court at this stage is whether there was an abuse of discretion there then the second that it was evaluating and because this does not have any bearing on that determination or the sentence that was appropriate for a juvenile again as as was stated in graham the fact that maybe later prove bears out that the defendant was in cordial does not demonstrate that the sentence was disproportionate to the offense and so given the defendant's character given that this is a juvenile given that the question is whether the trial court abuse discretion what is most appropriate and what we're asking of this court is for firmness of the public courses of me ask you this is it true that if the state was allowed to use the this is an angry variation that they would have proof were fitted their right to proceed on those charges those charges they were  because i'm not sure that i understand the question i mean when you were offered offer and i grieve you know other of france don't you forfeit the right to prosecute that other offense  i'm not sure i mean i don't know how to answer that question that we were going to if you were to citizens i don't believe so because he he indictment itself is not something that could be used by the trial court if this were at the stage of a trial court sentencing the mere indictment itself would not be usable by the by the trial court to the extent of whether other proof could be brought in that's a different question but what was brought up here was merely the indictment and it's not first in response to the argument involving graham versus florida and the various policy arguments that come out of grampus florida the defendant takes issue with the trial court not engaging in argument and con in in accordance with grammar says florida good grammar says florida was decided in two thousand and ten the first sentencing was in two thousand and six the second sensing was in two thousand and eight second in terms of the specific issue in graham versus florida it should be remembered that graham versus florida was an ether memet cruel and unusual punishment claim this is not a cruel and unusual punishment argument here the defendants claim is one of its sets of sentence under article one section eleven of the discretion would be the standard that the appellate court used in reviewing the trial court sentence defining abuse of discretion right then they crafted their own sentence saying twenty four years and it's twenty four your sentence would be an abuse in terms of this court reviewing a six year sentence because their sentence would as you're correct it would only be considering the mitigating non statutory factors without considering any of the aggravating factors and furthermore it is an error is really placing its judgment in terms of how to weigh the sentencing factors in place of the trial court it is not appropriate for viewing court to come up with a sense that it thinks is appropriate based on an individual review of the record in our standard review of the appellate court you know your honor actually reviews down to the trial court here in terms of whether the twenty four year sentence is appropriate or not so really we're looking at it from instead of really a can return back to grammar supporter for a second the u s supreme court case that raises an eighth amendment constitutional challenge grant it was an individual juvenile who had been sentenced to life without the possibility of parole and up when we walk up the individual and throw away the key and never allow the juvenile ever to have an opportunity to get out of jail furthermore in fact graham has language in it where it talks about how if the death penalty is the most serious punishment that the state can impose life without possibility of parole is considered the second most serious here of course we are far from life without possibility of parole we're talking about twenty four years or the argument of six races twenty four versus the ability to earn good conduct credit so clearly graham is far from point in this case and to illustrate another point to turn to the actual sensing the defendant eve if your honor would focus on the defendant's arguments in terms of well juveniles haven't developed for ability to tell right from wrong or things of that are nature the judge not only considered that but specifically rejected this line of argument he talked about how he wanted to recognize and specifically referencing c eight twenty five for the judge's second sentencing where he said i want to recognize the students who came here in testified very respectfully furry people like me very well spoken to make sure that in my mind as it turns out justice occurred in this case young people can do good things young people can tell right from wrong fifteen year olds can tell right from wrong but furthermore whether a fifteen year old can tell right from wrong or not is not the question for this court the question and that he should be considered and so the judge was presented with age and the judge said i think that young people can do good things i think this young man does need to be deterred so this argument about well it's impossible to impose a sentence a long sentence on a young man was rejected by the judge and in fact the general assembly has rejected this argument what the defendant seems to be suggesting is he's going back to his argument about young people in essence should only get the sentence that they would get is a juvenile get up to the age of twenty one but the general assembly specifically sets forth the policy that there can be a sentence of six to thirty years in this case and the general assembly has said that a young person should be treated as a as an adult in certain situations like in this case and what you would end up doing is you would end up rejecting the giving the mandatory minimum requirement here if you say well he should only get to the gauge of twenty one getting back to me damon issue most importantly we are saying the indictment goes to the second question of if there is an if there is abuse of discretion should there be a reminder not and absolutely the indictment can be considered in terms of the facts and we put point in our motion the state has the opportunity to bring in subsequent events to see had would have to prove it through live testimony what we're trying to do and i want to make this clear because i think the parties are not not lining up here we are simply a lerting the court to these subsequent indictments and the fact of if if the court finds an abuse of discretion which we say it shouldn't but if it did the question then becomes should this court fashion a new sentence or should the court remain in for an additional proceeding with the state would have the opportunity to consider that and the state absolutely has the opportunity to consider all relevant evidence at the time of the sentencing that occurred in this case the defendant was had a first sentencing in two thousand and six he was piece presents investigation report and new evidence came in for example the defendant says you're limited to the evidence at the time of a certain decision if that was the case the defendant wanted been able to provide a letter and statements to the court in two thousand and eight he had the opportunity to provide new additional mitigating evidence and arguments at the second sentencing so the general rule which he hasn't built himself of is the ability to always bring in new evidence and to remain and that is relevant again we're simply asking overturning the court of this new fact that we go to the secondary question of if there should be a remit unless the court has any additional questions we would ask the court to reverse the appellate court and reinstate the defendant's twenty twenty four