the next case i recall the docket today september thirteenth two thousand and eleven is case number one one zero nine two eight agenda number five and before you begin with your argument we had a conference about this case we accepted the case before the death penalty was repealed so we would like you to certainly begin with and maybe end with whether or not this case is moot with your nose improvidently granted or not good afternoon your honour's my name is steve becker of becker stevenson on behalf of the defendant johnny hill the great french thinker pascal wrote that law without force is impotent justice without strength is helpless the question this court has today apart from the idea of the death penalty being repealed is whether or not it will enforce its own rules or allow emasculation by the application of the mandatory directory dichotomy i think that mr hill should be granted relief based upon the abolition of the death penalty there is a question however of whether or not that's a substantive or which each will change in the law of course and whether or not the governor's the granting of this and the legislatures granting of this and him granting of the pardons in fact affected mr hill or not i would say of course that he should benefit from the abolition and therefore he should be granted a new sentencing hearing there's no the questions on that point i will proceed with the argument on the merits i don't understand which you would you tell me a little bit more about which just about he should be granted relief even in light of the repeal of the death penalty because why not because the death penalty itself has been abolished and he was potentially subject to the death penalty sentence at the time and now  i would argue at least he should benefit from from the abolition has he already benefited from me on no he does not because his sentence was based upon the ceiling that the judge penalty the judge decided not to give him death decided not to give a natural life but gave him sixty years so clearly the case is not moot because his sentence can be affected by the fact that he was referred to was that the judge say because hires a greater sentence that being that it's cracked he could have given him death he could have given him natural life and the judge specifically said on the record that he did not give them give him either of those sentences based upon the mitigating factors in the case and gave them only sixty years so if sixty was the ceiling which would have been without the death penalty then clearly the judge it appears here would have probably given a reduced sentence maybe forty fifty years but because he viewed death as being the ceiling the death the ceiling that the judge could have given was only sixty years but most likely under the mitigating factors surely he would have reduced sentence and therefore is because the judge had the wrong sense range if we take our position as being true but that should not have been on the table because of the failure to strike the death penalty notice in other words if  judge's is mis comprehending the range of the sentences that becomes of right sentence whether it's too high to low whatever the fact may be no i but i'm saying that the judge here because here view of a sentencing range  he was looking at he was making his determination based upon the range that he thought was a political witch with death and our point here is death was not a clerical because of the problem with the notice provision that if the ceiling for the sentence was only sixty years he has to be was it was already at the pole a court earlier on in this case and so the neighbor a stood up here we raise it up on our p r way but it was not considered to be a death case so it didn't come immediately to this court because he got less than the death sentence so i think it's properly before this court and i think the the issue before this court is whether or not mr hill should have been subject to the death penalty based on the notice profession other than stay hill with our opinion fact anyone   the state did not go ahead and and properly file the notice on time and they may have similar issues that arise in the future like mr here where they were not necessarily granted death but they were granted to sentence less and it might have affected their sentence based on the facts of the case so this may not be the only case that this court has on this particular issue are you we're going to have a case i not kno this mood for no number of reasons this court need not construe a procedural rule for death cases because illinois has repealed the death valley in addition the court need not construe a death row because hill didn't get the death penalty he got a sixty year sentence he'll did not even receive an enhanced sentence natural life predicated on the eligibility factor that had been proven in this case instead he got in an enhanced sixty year term that had nothing whatsoever to do with his eligibility we made this argument i brief and held his reply brief has not made any attempt to argue that his case falls with any of the recognized exceptions to the illinois i response to questions from the bench i would submit to you that his case doesn't satisfy the recurrence exception because the double jeopardy clause would preclude the judge from giving him death on remand in the public interest exception to the  motion to strike to deny the motion of preclude the death penalty might have had some effect on the other judge judge ford's decision to impose a six year sentence gather my thoughts here first of all in his opening brief filed in this court mr hill at no time ever argued that the ruling on the motion to strike ever affected judge ford's decision to give him sixty years as a result under rule three forty one we would submit to you that he has waived his right to raise it for the first time in a reply brief or an oral argument instead in his opening brief he changed course entirely he completely cut himself away from the moorings of that argument and said no i'm arguing a different kind of prejudice that applies to all defendants he talked about a potential rather than an actual sentence he talked about the psychological trauma that a person might feel not knowing whether or not the state's intended to seek death he referred to the daunting prospect of execution those are exact words from his brief and other words in his opening brief you never made any attempt to argue that the ruling on the motion or the late notice in this case in any way affected the sixty year sentence but let's take a closer examination of that argument first of all if hill is correct and the judge should have granted that motion to strike and should have by the death penalty that only means that he'll couldn't have received the death penalty there is no logical or factual reason to conclude that that alleged error somehow influenced the judge's decision to give him sixty years is the appropriate sentence for the unique mix of a good rating a mitigating factors in this case in his reply brief and in his oral argument in the appellate court mr hill argued for the first time that the judge should somehow resolve to sentence him to something that was one notch below the maximum penalty those are his exact words he says if the judge ha it my response would be that first of all that there's absolutely nothing in the record whatsoever to support the conjecture i think someone just referred to it as rank speculation that judge ford had resolved to say oh i'm going to give him sixty five percent of the available max i'm going to give him seventy percent of the available max there's nothing whatsoever in the record to suggest such a conclusion and mr hill certainly has not cited any page in the record that would support his argument moreover if there had been true assuming for purposes of argument that judge for decided to give him seventy percent of the max one notch below the maximum as he argued below then the judge  natural life predicated on the eligibility factor but he didn't do that and incidentally the judge could have also if imposed an extended term sentence to not just below the maximum on the basis of brutal or heinous conduct but the judge didn't do that either the eligibility factor in this case did not influence the judge's choice of sentence in any way demonstrated by the fact that he gave hill in nine enhanced sixty year sentence we know the reasons for judge for sentencing decision he made detailed findings which we repeated not brief when he entered his findings for the brief he referred to hill's criminal record which contained seven clarke convictions for drugs guns and domestic battery offenses he story window in the wordy ject it is judge towards word not mine and cause her to plunge to her death in a concrete slab below judge ford also recounted the evidence that the victim the scream all the way down in their broken finger nails were left behind in the track of the window which shows just how frantically she struggled to save her life and mr garza's focusing on the movements quietly i will that the point i want to make is that the judge repeatedly said he was imposing the sixty year sentence here on the basis of the defend his criminal record and on the fact that the in his words the murder was both gruesome and barbaric as a result i would submit two things one is that hill cannot argue before you today that the eligibility determination in any way affected the sixty year sentence because he did not make that argument in his opening brief and under rule three forty one it's worth it and secondly it was always a matter of conjecture anyway because we know judge for its reason for a six year sentence remarked to the effect that hilt shouldn't be asking this court for general dissertation on the law the only issue that he raises has ceased to exist and therefore this case should be dismissed this minute thank you very much mr becker do you want to give  where you are but mr hell never received the death penalty and that's that's the very point why this case is not moot because where a judge is under a misconception of the proper statutory sentencing range which is our very issue here because the notice of intent should have been even without going into their argument there was a death penalty in effect i put the put the reason that it the reason that it the fact of the death penalty is now a balanced does not help mr hill at all in the sense that he was still subject to the death penalty and the judge considered that that was the ceiling for his sentencing range at the time otherwise you were taking away mr hill's rights because i understand your argument as to why it's now moved yes i don't quite understand your argument as to why you throw in that the appellate court found that it wasn't they were they were faced with a a bit of a different situation but i'm saying it was not dispositive this court should rule the same way the appellate court did because mr hill was subject to the death penalty we believe improperly the judge was looking at a higher ceiling sensing range that was appropriate and under people versus action which is this court's ruling where that is the case the defendant is entitled to a new sentencing hearing it's just wrong if the judge thought there was either a lower or higher range the defendant should automatically get a new sensing hearing where the judge is under a misapprehension of the law that's our very case or that's why this is not moot and this court should go ahead and stand in recess until