to see it is is that that had been withdrawn his rule twenty three and it was premature until an opinion had been filed in its place that opinion having been filed a motion having been renewed and having all of us having money and then file a frivolous post conviction titian and that's precisely what happened to mr hogan when the scase so we're talking about an unfairness case or something the student in the actual authority under the law that's a apart from rule six fifty one c based on the act based on case law there that there is an unreasonable unreasonable bonus that can be found despite the fact that stern it was paid so while this brief limiting ourselves for a moment which i think he'd be all it's worth six fifty one c you're really in effect asking us to undo twenty years of decision hope that it isn't applicable to everything counsel aren't you but i don't know if i go that far your honor but i am mindful of the supreme court's decision in richmond which i think you're you're alluding to here you have suggested we have to overrule the supreme court categorically categorically denied that claim that it wasn't supported and then on post conviction counsel essentially took the same argument from direct appeal and then why would i suppose conviction petition added an affidavit but nothing attorney actually filed for him you know our position is that this it had no merit it was already denied on direct appeal what what if there was nothing at all what could have been raised that well different than what was fine we don't know what other claims might it might exists for an initial post conviction petition we don't know what actually happened between post conviction counsel and mr and we don't know before the filing of this petition saying he didn't meet what's possible that there could be an affidavit from and we all know that includes facts that were not apparent from the one chance to file an initial petition that's the prejudice here well mr z what troubles me is you use a procedural sage that would allow us to analyze i mean it's very nice rhetorical move to get us to the alleged deficiencies in the post conviction petition of counsel file but if we read six fifty one see differently then you do and read the supreme court's decisions plural and many appellate court decisions is not holding six fifty one c applicable to retained counsel then we are left with the issue that was decided adversely your position this week by another panel of this court which of course we read with interest but we're not bound  to follow and maybe before we do anything else it would be useful to discuss why you think if you do have a reason that we should not follow that not follow says our right well i think first and foremost there's clear factual differences between the cases and ceasar the attorney actually filed a petition and did a reasonable competent work and that case the defendant initially drafted the petition pro se that that's the way of pronounce that really we shouldn't even be looking in the case of a routine housel at whether reasonable assistance is provided reasonable level of assistance is provided at the second stage isn't that one possible reading of what that other panel came up with that sure your honor should we follow it and if not why not you should not follow it and then you got six fifty one c which delineates these three things that the record has to show that the attorney did the attorney has to consult with the client the attorney has to read the trial record and has to amend the petition not barry you know assistance of counsel correct me if i'm wrong there but just because counsel does those three things doesn't mean that he or she provided recent poll assistance they might not respond to a motion dismiss they might show up to the hearing on the motion to dismiss and you can you give us examples of cases that have been decided in this very under the both conviction that you would use to bolster your position i have two responses that your honor one is if you look at the the case people who are suspended the two thousand and nine case from the second district that the state cites of said in a reply i mean there is a very similar situation to this case where the court expressed clear reservations about applying this richmond  rule and that and that case noted that the defendant there wasn't given a proper opportunity to complete an original petition and that's the same situation that mr around we are no seven and there the court specifically noted that the defense did not raise a an reasonable assistance argument that was divorced from rule six just six if you want to see or independent of that and i think it's pretty clear that bennett court would have entertained that of course we don't know what the bennett court would attorney that would be outside or not listed specifically ends six fifty one c and then just looking at the act as a whole it doesn't make sense to have different standards for retained paid attorneys and appointed attorneys i guess the assumption is if you pay for an attorney you're going to get a damn good attorney but that's not necessarily the case and that's clearly reflected here where mr angry i know this family probably script together money didn't have to pay the attorney and then  before me well the state and the motion to dismiss certainly thought that it was frivolous they looked they argued that rescued a kind of clearly applied and it was nothing more than the same thing that was filed on direct appeal is close but two people can think differently on that same thing  read as an attempt to overcome a hurdle which is just in this case very difficult to overcome i call it a feeble attempts and if you look at what's actually attached it does nothing more to support an entrapment defense it's just more information regarding the uncle that was the one who according to mr ron we all know kind of pushed him to find buyers for the cocaine but as you said the rule twenty three that doesn't go to entrapment waiting to hear something from you indicate that you know this was really unfair because he could have said this or you could have done that but i mean i understand your position your honor your concern nothing but well there's enough there's nothing in the of this court and the case that's on all fours i just thought you'd have a little bit more ammo well say unsupported by the record though i can't come in and say what other claims were strung out house that's outside the record but what i can say is that there's a fine there's it's it's unreasonable for an attorney to accept money and then file a post conviction petition that was the same argument but now that if there really is something out there that could be a second successive reveals that there was actually something that could be said and wasn't brought up that would assert his actual innocence there is a basis for bringing that before the petition in a way that you think was ineffective well sure but that's but again i don't think it's going to be just send up for second stage for city council all right i think we understand your position supporting questions because despite the the the hard and hard questions we've asked mr xiv i have some questions about not six fifty one c but reasonable level of assistance so would you agree that the right to reasonable level of assistance is not grounded in six fifty one c but based upon the supreme court initials so that was the illinois supreme court's reading and that is the root of the right to be civil society counsel now i was interested that neither side cited people versus mitchell are you familiar with that case i have not known or it's founded one eighty nine you know when we second three twelve it's the supreme court decision from two thousand and interestingly in in that opinion the illinois supreme court first followed the line of cases with starting with owens holding that in that case where there is a retained counsel who filed the whether the defendant's attorney provided a reasonable level of assistance so it's hard for me to understand why they would do that a case with a retaining counsel if the limitations of six fifty one c two appointed counsel also applied to the reasonable level of assistance can you enlighten me on that wants to and every other court apparently except for michel including these more recent cases have helped that the legislature created a governmental obligation with a combination petition and then hired counsel the question is the division is who filed the initial petition if it's retained counsel there's an inference and that's in johnson or presumption that the defendant has enjoyed basically  the rest of them if the court would allow me to respond in writing later i'll be glad to do so think that's necessary but let me suggest that brown white mitchell has a situation where there was retained counsel and relying on richmond the court held that six fifty one c did not apply but then engaged in a separate analysis of reasonable level of assistance my reading of those two cases especially michel because it comes from our supreme court you would have to read into that that they were engaged in a completely frivolous and your relevant act in actually applying this type of analysis once they recognized that six fifty one see the didn't apply because it was a retained counsel now another thing i'm i'm troubled by and i'd like to hear your reaction to that is six fifty one c really does as you referenced it talk about a situation where a proper form as to the constitutional claims the defendant has raised right and then at the second stage that appointed counsel would be helpful if it's dismissed that second stage challenge to have provided a reasonable level of assistance if it's an appointed counsel correct if i had to say outside of the context of facts but in general i would say that if counsel has met the three requirements under rule sixty sixty one see that's considered in those circumstances recent assistance of counsel well there is no reason at the second level is there to judge the performance of a lawyer who's written any differently than you would a warrior who was  appointed at the second stage yes because again if i understand the question the difference is that if the attorney has filed the petition i'm not why would the two attorneys be judged differently because when one is since you have someone who's shaping a pro se petition that may be insufficient and again the attorney in that case is looking narrowly or not nearly at the cost to tional claims the defendant has raised that's his burden to shape those claims on the other hand if you have a defendant who had an attorney who filed the initial petition like in this case one sees are especially they raised the whole especially in sees our counsel raised a host of claims so if a defendant who has has had an attorney prepare his initial petition our colleagues said that the state has no obligation to assure a reasonable level of assistance that's correct does this they have an obligation to assure effective assistance of counsel trial certainly i've got the constitutional bay have the state past who certainly has an objection to counsel who is doing an effective job well that the state would not object to as ground zero there reading in the level of assistance required a reasonable level of assistance to the act in conjunction with six fifty one c correct because one twenty two twenty s for all only involves appointed counsel it's language that talks of as court most talks about when an indigenous entitled to upon a council so what we get back to mitchell where  but i would argue that i would argue that in effect if i move back out there's two obligations that issue here one is the governmental obligation which is created under rule six fifty one c and one twenty two  four and one is a contractual obligation and that's what the recent cases have held and seas are in cable and so on you have to obligations because we're talking about defendant who seeking collateral relief he doesn't have a presumption of assistance as a defendant who has appointed counsel after a second stage there's a weighing process the two are considered to be essentially the same they govern if you're with him counsel you're giving up court would like but in the meantime i would argue that to the extent the court mentioned reasonable systems of counsel what it was really looking at is competency of counsel and just to illustrate i would point out is in cesar the opinion that just came down yesterday it's quite clear the court says three different times that the state has no obligation to assure reasonable to simply take counsel and then attempt at shooting myself in the foot here but it in the end of the case the court says in accord with cagle we find that the attorney has a duty to provide the petitioner with a reasonable level of assistance well then the court goes scientists to say an attorney who fails to provide competent representation so the court used the whether they could afford wholesale and this case we're talking about now does present a question of council performance of the second stage isn't it true yes and cable is a second piece second stage about competence too but the fundamental point i'm trying to make is that the allegation the government has carved out a very identifiable identifiable obligation in this case and in these cases might quite in this client so i think a call absolutely supports our position it says that the sixth amendment and one twenty two days for quick governmental obligations a and i wouldn't go too far because if he opens the door again he's going to hammer you thank you for the warning your honor albeit extremely brief i would just like to encourage the court to engage in a similar analysis that the