which you may proceed may please a court aaron o'connell assistant attorney general on behalf of the people of the state of illinois two years ago this court in people versus house child held that the enhancements in the armed robbery statute for the use of a firearm in the course of a crime were unconstitutional because they violated the proportionate penalties clause of the all my state constitution specifically at issue in that case was a fifteen year enhanced meant in this case the circuit court extended house child's reasoning to the twenty year enhanced in the same statute we have appealed to this court because house child it should at this case indicate he overruled and the court should declare that all of the enhancements are constitutional and it furthermore if the court does not do so then it should find in this case where the petitioner entered a negotiated plea and agreed to his sentence that he should not be entitled to unilaterally modify his sentence based on this subsequent change in the law there are two grounds on which house trial should be overruled and the first is that house child did not cite or apply the well established principle that where the court is called upon to determine whether to here however we would urge the court to revisit certain aspects of their reasoning in house child and alternative argument is that in this particular case what i'm really getting at just seems to be that because birth order well in this case there was a notice of appeal filed from the court's order declaring the statute embellishing and then when it came up on appeal to this court the court re mandate for the very limited purpose of entering an order that formally met the said twenty year enhanced man at issue in this case is unconstitutional so under rule eight eighteen that would be a question that would be addressed specifically to this court with the side oh yes the trial did rule that the enhancement is unconstitutional to get back to the issue of the notice of appeal because of the unique circumstances here where the court had jurisdiction and then remained it for a limited purpose in fact yes where the court has jurisdiction and then orders the circuit court to carry out an administrative task as it did here the court is not relinquishing its joyce diction over that case it's simply unless the court is inclined to reconsider the issue i would urge the court to abide by that previous rowing i would agree with your honor but on the ground that the notice of appeal i second know some people have not biled that did not deprive this court of jurisdiction so the jurisdiction was vested in this court on the first notice of appeal that's when the case was initiated the quote assumed it plenary jurisdiction over this case when the court simply remain ends and then requires the circuit court to them file a document with the clerk as it did in this case the court is still there and the court simply precedes following the circuit court's compliance with the court's order you've been pretty of your arguments were pretty much over ruling it doesn't necessarily look at the facial validity of the statute but it embodies this concern that that particular sense is proportionate to the argument the question is pruden has evolved quite a bit starting in one nine hundred eighty three and the court actually recently and people versus sharp and she thousand five thirty we set forth the history of the courts jurisprudence in  we made under that ruling ones of crack so people versus sharp abandon this court's cross comparison test however it said it that the court was not ruling on the identical elements test that was not at issue in that case it retained that case the first time that this court then applied the identical elements test was in people versus house child with serious two crimes the same elements they would be ripe for comparison the question is whether that is an issue that is controlled by the proportionate penalties clause of the state constitution and the argument is that that was the history and the text of the clause do not considered the argument that i'm making here that the proportionate penalties close does not speak to this issue of crimes having identical almonds now every case since christie has relied on christie and it limited reasoning on this issue to continue to apply the identical test so it has been part of this court sure it's prudent however as the court recognizing people versus shark the court expanded its reading of the proportionate penalties cries without necessarily engaging in a thorough analysis of what the history of that provision would support and then sharp of course the court recognize that it did not allow for a cross comparison analysis and in this case the identical onus test has been fairly rarely applied as compared to the cross comparison test the only three cases of this how how is this test how is it being applied is it a workable rule is it something that should be retained there are numerous flaws in the test that are th same as what the court confronted in sharp with respect to the cross comparison test however the quote was not yet confronted with the issue of whether those same considerations render the identical elements test likewise entertain going back three nine hundred ninety how do you address those due process and protections those would certainly remain options for a future defendant to raise in this context at issue here is only the proportionate penalties violation so certainly the concerns of the identical elements test addresses would remain and could be issues for future cases under those provisions in fact this court itself used to apply due process to the issue presented here and it just is a kind of historical analysis is the court set forth in in sharp it was the court imported those due process considerations into the proportion of penalties caused by way of a c f site and it's never fully explained how those considerations can also be considered a proportion that's correct and the courts have relied on then the united states supreme court's decision in united states versus batchelder this court in retaining the identical alma's test acknowledged batchelder and said stout with it under due process and equal protection it did not address what this court has and its state constitution which is a proportionate penalty flies thus the court distinguished batchelder on the ground that it was relying on these alternative theories but in the future there are there are states that have found that there are it there is a problem presented by overlapping criminal statutes so certainly the court could decide to join the minority i think though that the posture of this case should prevent the defendant dollie the petitioner from obtaining relief under an alternative theory just because he hasn't raised it at any point in their concerns so i would urge just based on the briefing and the focus of this case that those that a full analysis of whether those theories apply should be deferred to a future case here it knowledge ing that the concerns may be addressed and can properly be addressed under these other provisions is further support framers this court traditionally end in interpreting the state constitution has looked to the historical meaning of the provisions in the constitution and it has repeatedly declined to expand the state constitution in a manner that's not supported by some historical interpretation and here the court has unpacked adopted and unprecedent interpretation of the proportionate penalties crys that no other state with a proportionate penalties clause has adopted because the court traditionally does not do that it would be not need to necessarily be overruled on that ground because that case by lated a well established principle that the court will construe a statute as constitutional if it can reasonably do so and at issue of course in that case is a construction of the armed violence statute the question was whether violence which can be predicated on any felony defined by on oil law whether the list of exceptions which include armed robbery should be read as logically including simple robbery the court adopted a reading of the statute that was quite literal it said where there is a list and one one item is included another is not the court will not read a term into the list that is not there however as a matter of logic because the general assembly chose to exclude armed robbery and any robbery that could possibly form a predicate for armed violence would be an armed robbery the general assembly meant to exclude simple robbery also and i would just urge the court to look at the case of people vs camera oh we said this in our reply brief at page three in that case the court applied this principle to actually adopt a limiting construction of a statute that was not compelled by the statutory language but that avoided any constitutional doubt as to whether this statute was constitutional and again this is something it wasn't raised in the briefs and it wasn't in the opinion of people versus house child but that holding of that case did violate that principle so that does provide an alternative ground in addition to whether to revisiting identical elements test for holding that that decision should be reversed and finding that the armed robbery and hansen's are in fact constitutional that also comes from house child the question is what is the sentencing range that should be available on the sentencing and it we have noted that in other states where they recognize this to be a constitutional problem they have look to the lesser sentencing range for the identical crime that is a a more sensible result because it better and force is what the legislature is assessment of the severity may have please this court my name is susan will him with the office of the state appellate defender and i represent petition rapidly todd kelly and i'd like to begin with the question of jurisdiction i do recognize in my motion as i was dismissed but i would my motion was to dismiss without oral argument which obviously did not happen we are here today and i'm willing to entertain questions and i think what it comes down to is a simple question of what is the meaning of the court may summarily vacate remain and for rule eighteen compliant order in this case the trial court did declare it unconstitutional it made an oral pronouncement that it did not go through the list of things that this court has over no for insisted upon th things that is recently enumerated in whirl eighteen you want the court to ask if it's considered if it's considered a reasonable concern any other reasonable construction the statute if it is trying to maintain constitutionality this court did not make those written find the trial court i'm sorry did not make those written findings what we had then was an oral order in november a notice of appeal in december and at the time the notice the hill was filed the state and on the twentieth of february you have the written order that is compliant with supreme court ruling eighteen however you have a premature notice of appeal from december and no subsequent notice with peel attached to that rule six zero six d clearly requires that rule eighteen compliant yes which was denied your honor i would also like to distinguish the cases cited by the state in further to further answer the questions when those were returned to them under their  jurisdiction the state has essentially agreed that these are identical offenses and i think when you look at haas child we look at harvey and then you look at this case the enhancements don't change from fifteen to the twenty it's the same language and if it were it is identical and it is therefore unconstitutional the state has failed the challenge of the statue's void committed any time and can be made in a post conviction petition the state basically a lot of its brief is a motion to reconsider haas child they would like for you to go back and abandon the identical elements test and thirteen years ago this court after christie was asked to abandon the identical elements test and lewis and this court clearly found that identical elements test is less troublesome than some of the other tests in use at that time particularly this court f that it was not acting as a super legislature because the identical elements test was an objective and deferential type of review this court simply compares the offenses as a defined by the legislature with the penalties which again are defined  so it's not asking for a retroactive review we're asking for a statute to be cleared void and for my client to entitle to that rel as the state has pointed out there is definitely a problem with the indictment if you try to if you would sentence todd kelly to the the what she calls lesser sentence in the problem with that is  even when you strike the enhancement for armed robbery with the discharge a firearm there's a valid sentence remaining and that sentence is armed robbery there are cases such as christy where you clear the means of charging no longer exists here the armed robbery statute still exists once you sever that enhancement he still has a conviction under armed robbery and he still has a sentence properly under armed robbery within the six to thirty range what we are asking is that this court strictly apply the language of the statute and find that this is indeed two sentences it says very clearly that it is a class x felony for which twenty years shall be added to the term of imprisonment imposed by the court therefore the trial court was to look at all the factors determine what the amount of prison should be and then add to the twenty year hanson to there when the twenty  i don't believe that's proper your honor because in this case and it's in the record and you can find it in the state's appendix at page twenty seven todd kelly was clearly admonished that this sentence was six years plus twenty years for the use of a firearm so at that time that was the the legislature did want to set a penalty for firearm conduct however it's unclear exactly what it wanted that penalty to be at the same time it's set the penalty for armed violence with discharge for robbery with a minimum of twenty and obviously there are other statutory factors aggravation that would go into that armed violence with this charge the fact is there's twenty factors in aggravation and only one of them considers the harm hostages and they find exactly only one considers to just conduct cause or threaten serious harm and i think that it places the problem with the enhance it is that it does place a new empathy undue empathy and says i'm sorry on the tool with which the harm is threatened or cause and i don't think that we can say that the twenty year minimum is the will of the legislature because there are a lot more things in compassed in that minimum on the armed robbery i'm sorry on the on violence predicated on discharge or robbery there are obviously a lot of other statutory factors an let's give it back to the trial court see what you really think if you do give it back to the trial court your honor you still have two sentences you have the six year sentence imposed by the trial court and then we run into problems with the statutes that say that you cannot raise a sentence for any reason other than subsequent conduct on resentencing and obviously the temptation to the trial court would be to increase that sentence for conduct that is not subsequent assent to his sentence it would be for his original conduct and that runs afoul of our sentencing i think so you are because you have a system where the identical defendant and it i'm sorry defend is committing identical conduct can be treated in a different fashions when the state was look it was giving you the list of their other states i went through all of these and what i thought i was really interesting is there are states that upper portion of penalties clauses and there are states that look this is a due process problem and the state has not offered a case from any state with a proportionate penalties clause where that corresponding court has been faced with exactly identical offenses with difference in seeing ranges and i would be interested to see how the course would have would deal with that too but yes i do think it offends you process she expect  people who commit the same conduct to be subject to the same penalties i think in some ways it ties into the other remaining test under proportion of penalties so i think at a basic level it does shock the conscience of most people that you could commit the same conduct but not you know be subject to different penalties depending on the whims of the prosecution getting back to the six thirty and your argument is absence of any other information we are to assume that a trial core properly followed the statute gave him a sentence based on what he thought was appropriate for his conduct and then added the twenty years onto it you don't like the  determining what is appropriate such as in the case he is to determine what the sentence should be and then add on the twenty years for firing conduct that is what he is supposed to do under the and conclusion i would respectfully request that this court continue to apply the identical elements test and i would ask that this court affirm the trial court's finding that the twelve i'm sorry the twenty year has been to armed robbery with this charge is unconstitutional and yet on this issue i don't have the names right in front of me but they are cited in our reply brief there were two cases where the court applied this applied to due process theory to find a similar violation it was actually based on those cases that the court later found that this was part of the proportionate penalty for jurisprudence however the history of that provision doesn't support this importation of this other test under the different doctrine i just want to be clear about what exactly this defendant is seeking he agreed to enter a plea of guilty and to a twenty six year sentence his sense clearly falls within the general assembly's assessment of the seriousness of his offense undisputedly it falls within the range for violence falls within the range for armed robbery in fact at the time that the parties negotiated was believe that this was the minimum sentence under the armed robbery statute he got a sentence that's proportionate to his crime now he is seeking to unilaterally modify his sentence by effectively merging certain doctrines to create a sort of technicality because the court uses the identical elements test to declare statutes facially unconstitutional and the court has this doctrine of void admonition show where if a statute is declared unconstitutional if there's a strict application of th boy for all purposes and the court proceeds as if it never existed now he's trying to get a drastically reduced sentence of six to fifteen years of course he is also seeking to keep the state down to its end of the bargain which was to give him the sentence and to drop certain charges against him there is an option on the court and pearlstein vs woke also a recent case recognized in the civil cont that this doctrine avoid adding michel should be relaxed in certain circumstances the court has recognized that it should view the statute as existing for purposes of assessing the parties reliance so did this in a civil context we're asking the court to apply its similar reasoning to the context of a plea agreement and a plea agreement although this is a while it is on point in that it supports the theory that the court will occasionally look at considerations of the party's reliance on the existence of a statute although this is of course not a limitations context this is a particular context with that is also an appropriate analysis it is not a circumstance in which this defendant's constitutional rights have been by weighted there is no question that his sense is proportionate to his crime in this area of negotiated senses of course there are contractual considerations that would distinguish it from the class of cases where the court did recognize that strict application of the rule should continue to be applied so this is not exactly the context of a criminal case in which there is a constitutional violation instead it agreement context where the parties negotiated both sides relied on the existence of these statutes presume their constitutionality and use that to arrive at an appropriate sentence and of course the sense does fall within the range for both armed robbery and armed violence i would just also note that i was reminded that if the court is is willing and would like to address the considerations of the identical e of course this wasn't fully briefed before but we would of course be willing to submit a supplemental brief on those issues if the court is inclined to take that approach on that issue in this case if there are no further questions we would ask that the circuit court's order declaring a twenty year hands meant unconstitutional be reversed and defendant said conviction