good morning chief justice kilbride honorable members of this court i am assistant state's attorney and collins from cook county i represent the people of them in the matter before this court in this case the appellate court reversed the defendant's conviction and remanded for a new trial defendant was convicted in a jury trial of two counts of attempted murder and two counts each of aggravated battery with that of a firearm and aggravated discharge of a firearm he was sentenced and at the sentencing hearing he complained about his time this defendant all of a sudden complained about his attorney's conduct at clean ago she ations that occurred before trial though in his pro se pleading this respondent never stated that he would have pled guilty had his attorney provided better advice rather it was upon appointment of counsel that the first time a pleading was filed regarding defendant's a alleged decision to plead guilty absent the deficient advice the matter went to hearing there was counterva testimony from the defendant and from this counsel and the circuit court expressly believed defense counsel on appeal the appellate court reversed and instead of finding ineffective assistance of counsel held that the attorney had provided deficient advice because he had merely told defendant that consecutive sentences were possible that he allegedly didn't tell him that they were mandatory and the appellate court also held with respect to prejudice that this advice quote made it impossible for a defendant to make a knowing involuntary decision regarding the state's plea offer for authority the appellate court relied exclusively on this court's nine hundred ninety seven decision people versus curry a sixth amendment case in which this court address for the first time the application of the sixth amendment to plea negotiations that result in plea rejections this court in curry held that in order for a defendant to prove ineffective assistance of counsel that defendant must both prove first that is counsel's advice was unreasonable and clearly erroneous and second a defendant must prove not that his plea rejection was not knowing but rather must prove that absent the deficient advice of counsel the defendant would have pleaded guilty but for that advice now we brought our peel away in this case based on our position that the appellate court had misread her in the supplied it however during the pendency of the pilate before this court the u s supreme court issued two decisions directly on point those two decisions control the resolution of this case and to the extent that curry deviates ever so slightly from the decisions from the u s supreme court this court must follow it so the threshold issue in this case has now become how do we change her to stand in line with the u s supreme court's view of the analysis in the sixth amendment clase sixth amendment case relating to plea negotiations that result in plea rejections this court must follow the u s supreme court it is the final arbiter of the federal constitution this case involves a federal constitutional claim there is no state counterpart claim in this case the illinois constitution is not at play in this case nor was it encouraged having said that a comparison between this court's decision in curry and the u s supreme court's recent decisions in  vs fry and laughter versus cooper reveals only really one distinction in terms of the sixth amendment analysis that distinction involves this court's prejudice analysis this court as well as the u s supreme court both it is a reasonable probability standard your honor but it also contains the but for statement both curry and the laffer vs cooper and missouri vs frye decision say that if then it must show a reasonable probability that but for the advice of counsel he would have pled guilty so i agree with your honor it is a reasonable probability however there has to be a connection between the deficient advice and defendant's decision to reject the plea if a defendant is insisted on going to trial and exercising his right to trial defense counsel could provide the most efficient advice whatsoever but so long as it didn't lead the defendant to reject the plate there is no sixth amendment claim now there are definite agreements between this court and the u s supreme court with respect to this particular prejudice component however the u s supreme court takes two steps further the u s supreme court demands that a defendant also show reasonable probability that the state wouldn't have withdrawn the plea offer and also a reasonable probability that the judge would have accepted it ratified it and the plea would have been executed the reason that the u s supreme court added these additional burdens is explained in the decisions itself both decisions recognized that the prejudice in this type of sixth amendment claim is the difference between the sentence th defendant is serving at trial and the sentence that he would have been serving had he accepted the plea and the sentence he would have been serving is not just based on the acceptance of the play but ratification of the us supreme court decision la vs cooper stating that was from a michigan state decision and like michigan illinois has supreme court rule for zero two which requires a judge to review the agreement between the parties and the judge must make an agreement to what the judge is not bound by that decision between the parties to plea offer and plead in fact the judge can reject it or the judge can sign off on it because the illinois rules allow a judge to do so or not at that point you know the fifteen year offer at that point was presumably and evidently based on this court's decisions pretty hostile and sharp people who are says morgan had been issued in january two thousand and three morgan had rejected the add ons and that way the attempted murder with a firearm only carried a range of six to thirty so this is an add on issue not a consecutive vs can current oh no no your honor not at all i thought i thought your question concerned whether that fifteen years is available now no it's not at the time at the stated time the offer yes was it a valid yes it was sent absolutely it was and the issue and the issue with respect to the consecutive sentencing concerns what happens after trial if he's found guilty of all the fences they have to run consecutive however he pleads to only one attempted murder six to thirty fifteen years isn't within that range so  are presuming that the fifteen year offer was to a single count of attempted murder if it wasn't to a single count of attempted murder it very well could have been to a seven and a half and seven and a half consecutive years and there's a number of ways to make fifteen years in two thousand and three a entirely legal sentence because there was no available firearm and handsome and at the time and in our briefs we make the distinction that that fifteen year sentence now today because of hostiles and sharp and the revival of the add ons would be below the mandatory minimum twenty one years which actually brings me to the major point in this case with respect to the prejudice component there is a clear dispute in the hearing testimony that was before the trial court and the trial court's ruling was not against the manifest weight of the evidence in this case the defendant testified that his counsel only told him that the range that he would face after after sentencing and trial was six to thirty and that it would all run together in other words it was only consecutive sentences that he was facing that was defendant's testimony defense counsel's testimony on the other hand was that he told the defendant about mandatory sentences he discussed with defendant the possibility of mandatory sentences and in fact he did on numerous occasions however the defendant didn't want to plead according to the defense counsel the defense counsel said defendant wanted a trial this is different also from defendants testimony where he stated at the hearing that he would have been inclined had he known that he could get forty years this sets up a question of credibility that the circuit court resolved in favor of defense counsel and against defended and it's not against the manifest weight of the evidence in this case and the reason it's not against manifest weight isn't just found in the hearing testimony itself the entirety of the record discloses that this defendant was not indeed inclined to plead guilty and it isn't just the fact that he maintained his innocence it's the doggedness and severity of his claim that is significant in this case he continually preach trial during trial post trial said he was not the shooter he claimed that his passenger in the vehicle who happen to have been deceased at the time of trial was the actual shooter he got a defense witness to recant her statement to say that jeff smith was the shooter not the defendant and he also refused to acknowledge or apologize to the victim because he had nothing to do with this he wasn't a shooter in combination all of these factors and considerations in the record disclose that this defendant's hearing testimony was not enough to establish the necessary prejudice component it was self serving it was unsupported by counsel and nowhere does the record support it and for that reason he didn't prove necessary prejudice element going back to the remedy in this case this court's remedy in the event that this court even does consider that he's met his claim and then it remains and he's able to meet additional claims of showing that defense counsel was excuse me that the trial judge would accept the plea if he's able to make that showing the remedies at issue in this case because the u s supreme court has suggested additional remedies beyond what this court had found and allowed in people who are scurrying this court is arguably not bound to follow the u s supreme court suggestions of remedies the remedy to a federal violation unlike an actual analysis is not something that this court is mandated to follow so the option is available to this court and we simply ask this court to consider those potential available remedies to this type of claim this court in curry held that the correct remedy was simply to remain on for a new trial with the option of renegotiating or for a new play the u s supreme court by contrast suggests that the available option should be weighed not by the courts of review but by the trial court and the trial court after hearing all of the evidence and looking at the equities on both sides of the equation should consider a number of available options including not just the remedy that this court fashioned in curry but also an additional remedy of perhaps re sentencing an original sentence somewhere consistent with what defendant expected  the plea that was offered sentence or no remedy at all because the u s supreme court recognized the defendant has never really in a position of exactly where he would have been from that first moment of the plea offer in fact a post hoc remedy is almost impossible in this case to mirror the circumstances these remedy suggestions by the u s supreme court give weight to the equities of the situation and it should be considered by this court i believe that i need to mention just in passing the fifteen year sentence and perhaps explain that a little bit further your honour's the fifteen year sentence at the time was likely a sentence on a single count or an officer was likely on a single count of attempted murder six to thirty was the range at that time because the firearm and handsome and so they were in the statute were not legally available because of the issuance of morgan morgan was issued in january two thousand and three this trial happened in december i believe two thousand and three so there is likely that the offer was made sometime in the period between those two events and we would not have been able to legally impose those sentencing add ons because they have been declared unconstitutional because of cross comparison analysis under the proportionate penalty clause of this constitution as a result fifteen years was a good sentence then and in fact after trial this defendant was sentenced to an aggregate forty year term thirty intent that was also a good sentence at that time yeah i'm very confining i know you're  court did not address that because that issue the question of remedy and sort of a question of reinstitute that originally walked out i mean that's i don't see that with what i'm seeing that maybe maybe  up the issue of whether or not counsel's advice was substandard be right as counsel did not did not accurately portray consecutive versus concurrent sentences and that has nothing to do that exactly you are absolutely right haas child and shot concern the remedy the appropriate remedy defendant is asking this court to force the state to we offer that fifteen years and i'm i'm going to have to what is the problem here the counsel correct in that or not constant second of sentences available or not yes they were they were in fact mandatory depending on how the evidence came out at trial they were indeed a possibility that's what coun told defendant he said consecutive sentencing is possible that was what the appellate would have had a problem but that would be invalid as a word he uses he said that they would be a possibility but he believed that they wouldn't have been appropriate considering king principles if i can explain a little bit and again i don't i can't get into defense counsel's mind this was not in the hearing testimony but as best as i can ascertain from this record and the statements of defense counsel both at the hearing and earlier when he was requesting that the court run these sentences concurring concurrent defense counsel song defendants act which was a single shooting at a vehicle multiple shots in kind a quick succession he saw that as a single act of justice twice so what this defense counsel believed was that maybe if the state doesn't apportion these shots among the various quick victims it's going to be a single act and maybe they should run concurrent and i make a distinction and i point that out only in so far as in contrast the defense counsel in curry specifically was unaware of the fact that there was even a only way to interpret this is that the state was going to dismiss one of the charges i don't see anyone discussing the anywhere what i see at least in the health court decision is the understanding that the offer was fifteen years which is state and the defense understood that to be two charges apparently running concurrently me that's why i would be talking about consecutive versus concurred if it was only one charge because we're comparing what happens after trial the advice of counsel was if you go to trial this is what could happen to you that's the deficient advice it has nothing to do with the plea offer it's a comparison between here you got fifteen years on the table do you want to roll the dice on this fifteen years now and take it and give up your right to a trial or do you want to risk going to trial and once you go to trial that's when the consecutive vs concurrent question arises because prevail we talk about a remedy cooper seems to say that the district court order specific performance of the original plea of the plea offer the cooper ordered the state to re offer the plea can that be this is a practical part of the criminal justice system in illinois cook county and always has been you can negotiate around terms you can negotiate on a factual basis so it would certainly be a valid sentence for the state to remove the firearm from the factual basis they present to the court would they have to recharge and removed from the charge and i don't know if i know the exact question certainly the if the indictment compels that the case was i understand it now is that the indictment a factual basis compel it in the sentence is mandatory you all know we argue that you should apply carry on and stick that standard since laugh is come down the sport obviously has had no i mean let's stop for a minute on that how do we apply korean lady to the us supreme court for us well i think you can still this court can always offer greater protections now admittedly it has gone lockstep under the sixth amendment with the supreme court in the past and even if it chooses to in this case i think that also results of this particular case is a foregone conclusion that's what i'm having and departing from federal president doesn't that come into play only we are when we are construing a claim under the state constitution i would agree with you completely on that point and so if we're going to discourse going to adopt l r i would simply want to discuss several factors i think ought to be aware of when implements it so it makes it a workable opinion where the circuit court to apply so just so i have it straight you're agreeing that questions arising under the sixth amendment which would be visit question especially if there isn't a could buy is the issue and there is not a state right to counsel issue then the u s supreme court decisions are controlled assuming there is on how to decide those precise factors and i want to be clear that a factor on whether or not the state would have stuck by their opinion is not simply whether or not they would have withdrawn it but whether or not there was an intervening circumstance that would have caused them to withdraw intervene by definition is coming in between this is not something that should be ad infinitum then it being circumstance the state must point to should occur post offer and before rejection by the time you get back and a hearing on this several years could have passed they have in this case the station not have the benefit of looking out over the legal history developed of the course of those years and picking out a few instances and saying well based on this we would have withdrawn the plea i think this court has to limit the time that intervening circumstance can arise between the time the offer was made and the time that if it rejected i think that's one of most critical things the second thing is when it comes to what the state knew at the time they've a lesson forty seven forty to their brief that they believe the sentencing range at the time was clearly six to thirty that's disputed by almost every fact that's available your honor and this is why i think they're trying to say that it was a fifteen year offer based on their understanding of six to thirty at the time but in fact they knew because they had them bond hearing of my client's criminal history they knew he was extended they knew that one of the victims was in a coma for three months severe bodily injury mandatory consecutive so they knew at the time they made this offer that my client regardless of the facing a sentence of twelve years minimum ninety years maximum now the states as well it's irrelevant that he didn't that the defense counsel didn't talk about the possibility of being extended because my client wasn't extended we have to view this deficient performance in view of the defendant at the time he's told by his lawyer that he's got a fifteen year offer and he's facing six to thirty and he counted for twelve that's close in fact he's facing twelve to ninety and the reason some porn that he be told about the extent of term is because the reason we require lawyers to inform on the offer is so that they can make a rational decision you cannot make a rational decision if you don't know what you're facing in him apart from the add on entirely my client facing twelve tonight and he countered with twelve you tell anything from the record about details of the state's plea was that something i think i see one of the charges i think would all be pure conjecture on it there's no indication whatsoever  how the state thought they would get to that number again i think that if we if we take that on a separate thing being that the sentences were twelve and to ninety it could have been done at the  and didn't flip until after her boyfriend died and then she said i was my boyfriend you have and it was overwhelming my client was facing twelve to ninety he got absolutely deficient bison is facing twelve to thirty now so we just sort of the first part about whether or not the state would do  and i really do think you need to limit that time frame of plea offer to rejection they're going to claim an intervening circumstance i think the more difficult question under laffer becomes what about how do you show the trial judge would accept the plea and the first thing i think th is on page thirteen eighty nine of laughter justice kennedy specifically left open the constitutional question of whether the trial judge henri mand has to disregard all of the information that she learned post rejection  and he simply left us open as a constitutional matter in other words at the time the judge would have heard the plea we know how busy cook county is a criminal courts building many of you have personal experience there i certainly do the judge likely would have known very little about this case certainly the basis but nowhere near the extent of having heard testimony and entire trial evidence in aggravation so justice kennedy specifically left open whether or not the judge needs to disregard this information as a constitutional question i suggest to this court that the best way to avoid that as a constitutional question and the best way to put all parties back in the position they would have been at least as close as possible before counsel's ineffectiveness would be to remand it tween new trials which because there's no way to unring the bell yes it is around what is couple factors i think we look at only show a prejudice and yes he said i would have been inclined to accept it had i known they could have been consecutive i think you can amplify that by saying well what would he have done if he had actually had ninety but even encour ninety at eighty five percent that company advice i think we can view as one of bridging the gap between and rejecting a softer and accepting a softer and i don't want you to look at his words and curry simply says you can't look simply that if in a self serving words but look to his counteroffer of twelve years on a fifteen hour and no no to back that he made that counteroffer along with the belief that he faced a maximum of my math is correct twenty four years roughly served thirty eighty five percent if we were to look at his statement he also suggested that before there would be any action he wanted of fifty percent per day for day credit did he not win but i believe he did say that as well your honor but i want to get to a more basic point though and i hope you understand this were you to prevail you have to show ineffective assistance of counsel yesa so we agree that not telling him about the consecutive mandatory and saying fifteen and maybe a possibility of consecutive that polls below the standard are to do we determine whether this defendant suffered prejudice one thing we have to look at is would he have been inclined to accept the offer we have something in the record and that's that may be questionable but that's one thing to look at do we have to determine whether the prosecutor would not have withdrawn do we have to determine whether the trial judge before we can say the s has been satisfied it seems to me you're saying we sent it back to the trial court to do this but then if we do we not need to make a finding of ineffective assistance to grant any really ask why it's a admit it is somewhat of a those things he has to prove that the trial judge would accept it was especially refuted by the score at the time so not only was he not on notice he would have to prove it cruelly tell them he didn't have to touch that subject the fact of whether or not the state would withdraw it was never as never appeared before so i think it's fundamentally unfair if this court adopts laugh or to make any decision other than this case needs to be remain ended where my client will have an opportunity to present evidence on those two factors and what this court i believe really needs to focus on because laughter is a very in my opinion at least complicated open opinion that is going to be hard for the circuit courts to apply and i think the majorities he reminded this burden on the defendant while it is a reasonable probability and that's sufficient to undermine outcome contents in the outcome the supreme court in two thousand said in two thousand said this a very low burden less than a preponderance we need to remain and i'm not asking for sympathy for any criminal defendant at all but because of their guilt or innocence of a particular crime my client had no role in the sea or i understand the state's frustration they had no role in this problem i understand the trial judge's frustration they had no role in this problem my client again regardless of whether he's guilty or innocent of the underlying charges had no real role in this problem either because he received an adequate advice twelve and one of the facts one point real quick it's not a question of whether the second there's a significant difference between telling a criminal defendant that consecutive sentences are possible when they are in fact mandatory that is not even on the same playing field and the result is my client got information twelve to thirteen so twelve to ninety but to your question directly yes your honor i think determination based on the current rec if this court determined that i guess my answer that your honor would be that since this court applied curry and and said he didn't even meet the current standard then i guess that would be the end of the case but if you agree that he had met curry showing deficient advice from counsel which i think he's clearly shown and we look at the objective factors that curry of us again we can't look at a self serving statements counteroffer of twelve we thought it was thirty the strength of the case against him the difference in the senate says he received very explicitly says that  see just two point six times longer than the offer and it's thirty three percent longer than he was told the maximum ethos was so we were view all of those factors this was not a close case this jury deliberated and just over to our shops this was not a close case you look at all those factors i think you will find he met her and we stand by the appellate court's opinion on that when you if you when once we reach that point i think you do have to remember it because fairness dictates that my clients you get an opportunity to show that there were no intervening of michigan generally reason we should wait to see what they do on there with regard to the remedies i don't think so and say why this is likely to arise this type of case the staff is likely to rise into situations that i can think of at least one is where an offers made in exchange for some future acts on the part of the thing it whether it be testimony against a codefendant testimony against a third party that office operator is rejected based on effective assistance of counsel conviction you go up on appeal you come back for your hearing in the meantime the individual that the primary definit was going to testify against has already been acquitted and that's the typical situation they made an offer to testify against a codefendant she refused the codefendant was acquitted and ultimately passed away before the case was finally remanded that's a much harder situation and not one that we're facing here today this is the more simple case of your the authors made simply an exchange if you're guilty plea there's no future act or condition that inhabit that so i don't think it's quite nice to wait until it all because i think it raises fundamentally different issues in this case is much simpler there is no again no future act is required on the part of mr hale to receive this offer  these three cases together limited y c better to find the discretion trial judge as an employee and enjoy and when this goes back on the laugh of the trial judge is going to have a broad range of discretion i encourage this court  remind the circuit court of those cases to compel the trial judge if they deviate from the original offer to put their reasons on the record or in writing because in that situation the only remedy a client either my client or one similarly situated is going to have in councils perspective not necessarily your honour's i think that this case first asked what the appropriate analysis would be how far do we have to extend gary that answer is simple we have to follow laflamme cooper once we establish  i heard that we should give direction to the trial court did you agree with the direction that he was he indicated jurors are human not necessarily or on i think frye and cooper are self explanatory i don't think that there's really any need to add an additional gloss to it in the question of the court's discretion is something that the court exercises on a routine basis and it would be a matter of determining where the equities lie in the individual situation first to determine whether defendant has met burden and if he's met his burden then to determine what if any of the remedies available are appropriate in this case taking into consideration not just the deprived just suffered by defendant but the potential harm to the state as well and those are suggestions by the court i think it would be if not imprudent at least unnecessary at this early juncture to set some standards when we're unfamiliar at least with the way these hearings are going to proceed what the u s supreme court did was it said that it would allow the circuit court's time to work out what needs to be done in these types of situations i think it's difficult to predict in one opinion what the various factual circumstances would entail  kind of hearing would this state be required to disclose from their records what their understanding of the plea offer was potentially yes that would be part of the questioning at least insofar as the portion of prejudice involving the states six cept ince and continuance with the plea i think that would be a legitimate inquiry with respect to counsel's suggestion that we send this back to another judge that is entirely unnecessary and unsupported in a typical trials in ario usually when a plea offer is communicated and there is a close agreement the matter goes to a for a to conference that's the procedure set up by this court's own rules this case never made it to a four zero two conference and that in and of itself is further support for our position that this defendant didn't want to plead guilty under any circumstances afford to conferences held in every we negotiation not in every plea portion of your honor particularly where the parties are close there is a real indication that defendant wants to plead but the parties and the defendant both want to assure themselves that the court would be amenable to consideration of the close offer and acceptance that's being considered by the parties and that of cook county that takes place yes it takes place on a routine basis your honor and the fact that it's not present in this case is significant likewise under that scenario if the defendant and the state engage in a for a to conference before the judge but the defendant decides not to plead many times the matter is heard before the very same judge who had heard the four zero two conference that judge isn't prejudiced by hearing matters the judge is expected and it's anticipated that the judge will only consider the evidence presented at trial as a means of establishing the defendant's guilt and this is no different simply because the trial court here heard the information doesn't mean that the trial or the information gathered at trial and presented doesn't mean this trial court if this case has remained it couldn't divorce himself or herself from that particular evidence and say of course i would have accepted this senior's it's just a matter of placing the judge himself or herself in the original position at the time of the plea offer and rejection of this case has a chronology of analysis first the application of fraud and cooper to curry then the application of that law to the facts it's the people's position that at that point when we take a look at this record defendant has been shown other than by self serving testimony that's unclear and contradicted that he actually would have accepted the plea despite the fact that counsel is emphasizing that this is an overwhelming evidence case and of course anybody would have pled guilty to an overwhelming evidence case we know that's not true here in fact this isn't a this isn't just a defendant who decided to roll the dice a trial this is a defendant who actually contacted one of the witnesses before trial and tried to pay that witness to not testify this defendant had two people go up to that witness and try to get him to recant this defendant also continuously pointed the finger at another man claiming he was the shooter the defense witness who he presented at trial had given police a statement the defendant was the shooter but then a trial she flipped and all of the sudden was identifying somebody else i would suggest to your honor that inferences can be drawn from this record that this defendant is not the innocent poor defendant to whom defense counsel suggested didn't know how to reject a plea under this bad advice this is a defendant who wanted to go to trial he wanted to manipulate the system and he wanted to take the risk this is supported not just by the record inferences but also by defense counsel's testimony at the hearing explicitly stating that i talked to defendant about the possibility of consecutive sentences but he didn't want to plead guilty he wanted a trial that's all we need to look at to determine that this defendant didn't meet that burden and there is no reason to remain and for the remainder of the showing however in the event that this court decides that this defendant has shown at least that threshold showing of prejudice with respect to but for counsel's advice i would have pled guilty i do agree with defense counsel that the appropriate remedy is not for this court to decide the issue of what the judge would have done and what the prosecutor would have done the record is entirely silent because his defense counsel mentioned there was no hearing testimony on that point because it was not a point of analysis at the time of the hearing in this case the correct remedy under those circumstances would to be remain and the case to the very same trial judge to continue this hearing to allow defendant the opportunity should he be able to meet those further demands in the showing of prejudice it's for these reasons and others expressed in our gre that we ask that this court reverse the appellate court's judgment and at the same time rather than remaining affirm the judgment of the circuit court thank you thank you case number one one three one