for morning honors my name escapes schwarz i'm here from the state of politics vendors office on behalf of richard young new talents good morning anyway trouble on behalf of the people of the state of illinois white because his sentences did not include mandatory firearm in hansen's and are therefore void he only contested issue between the parties in this case is whether white announced a new rule of law which in turn dictates whether it may be applied retroactive mr young's collateral claim according to the state white newly established is that in the context of a guilty plea it is the prosecutor's presentation of facts rather than the prosecutor's intent that determines whether a firearm unhandsome and is mandate by the state relies on people versus avery currently the only case to hold that white announced a new rule but every his reasoning which the state adopts in this case is incorrect to that and there are two simple reasons why this court sh reject the state's argument first this premised on a fundamental mischaracterization of the whole thing in white and second even if the state does not misconstrue the holding of white it does apply a flawed analysis of what constitutes a new rule will become evident upon further discussion of these two points is that after white there is nothing new about what the court or the state may not do accordingly this court should apply white here and reverse  where someone who got exactly what he bargained for now thirteen years later sees a way out and a way to get back to the trial court and force the state to try cases thirteen years old the motion of a case was he had within thirty days through church and in white he was promised a particular number and the mandatory supervised release kind of threw a wrench into all of th days then thirty days right and in that case it was what was yes white the situation in white was exactly analogous to the situation here except it wasn't thirteen years later well your honor i would like to point out that in mr young scase he to move to withdraw his guilty plea in this case within twenty five days of entering his clique and while his basis for moving to withdraw it was not a void sentence it is then sends twenty five days after his entry of the plea that he has been trying to withdraw it in this case so that was the and that didn't then already it was never reviewed your saying this was up within twenty five days are you talking about a case that he tried to withdraw aside the reason that the court should not do that is because white provides binding precedent from the supreme court and the situation there was exactly analogous to here and in white the remedy that was provided was that the defendant was permitted to vacate his guilty plea because the fleet agreement was found to be void and where the court has to decide those recordists decide whether or not white should be applied retroactively so then let's get back to that if that's your honor the two reasons that white should be applied retroactively and that it's not announce a new role is first because the holding of light was about the authority of the sentencing court to impose a pardon me the authority of the trial court to impose a sentence which does not announce anything new at all that is merely a reiteration of the long held and civil that unauthorized sentences void and that has been the case since people persons are not and it's and of course that is why white cites ample precedent for that language within its holding mr young would posit that the holding of light is what set forth in paragraph twenty three of the court's opinion that even want to defendant prosecutor and court agree on a sentence the court cannot impose an author of a sentence if it is not authorized by law and there's nothing new about that what did they do when the well actually what they do as far as morris the supreme court when they held the whitfield was a case that should not be applied right for the situation and whitfield and morris morris is the case that announce of course that would have been had in this case it would have been twenty five years for one and there is some debate between the parties us whether it would have been twenty or twenty five years for the other conviction so would it have been  explaining he wants a new trial yes are will now what about the authority from other states that actually hold and i'm going back to the stop theory that there should be a hearing well within this state the strongest argument for that is probably people her says donal send but it is important to note that donal sand did not abrogate why it the white and donaldson exist in harmony with one another because the killer the court and honest and specifically distinguish white and explained why the two cases were different and there were two reasons for that one reason that the jonathan court held that that kate was his was different was the fact that the defendant there did not claim that he was improperly admonished regarding the prejudices the state because we have a thirteen year time frame within which there is both for iraq and freida retry the case at the whim of someone who actually did get the amount of time they want to your honor i think that would be providing too broad of a reading to white white simply did not provide an conditional language within its holding that it was only a foot above in a situation where the state couldn't be prejudiced to what i'm saying isn't that indeed the new rule of law because can you cite to me any case before white where the state was required to have the case go back a allow someone to vacate the guilty plea that they're not here wanting on a voluntary basis to vacate a sentence because the state required the statute requires a forty five year minimum and the defendant isn't seeking that benefit of the bargain he's seeking a new trial in a time frame when perhaps the state can proceed is there not a new rule of law well the remedy that was provided for and in white which is the withdrawal of the defendant's guilty plea is not a new romney and that is something that distinguishes this from the whitfield more a situation people vs clone as an example of a case that howled that the defendant was entitled to withdraw his guilty plea because his sentence was void and that if he watched the stippling did he want forty five years extra or did he want a new trial after you know a lot of time had passed now it was it was we first heard mention of this rule that has been the subject of much discussion the court the appellate court sent the case back to impose mandatory consecutive sentences say after a trial so and then it went up to the illinois supreme court and the supreme court said that the sentence was void because it was outside the step story required there was a mandated consecutive sentences in that case so when you say it's a rule of law i'm not sure that that it isn't in this particular case and in any case where you have a time frame of you know twenty fifteen ten ten years or more and i don't want to put it number one but is that an insurmountable burden isn't it announcing indeed a rule that has never been before because here we don't have someone who wants to should be applied retroactively your honor and actually what would be new is remanding for a sentencing hearing about whether the state is has been prejudiced or remanding to allow the prosecutor to amend  the courts were being told that the state with regard to this new law that the state is not here that the state no longer retains the discretion to negotiate low with the legislature mandate it's met with no your honor that the state is arguing essentially that because and this is taken from people versus avery that because there was some lack of clarity  that any time a judicial decision provides clarity on a point of prior confusion it announces a new role and that logically can't be true because every decision every case always involves some lack of clarity if that were not true then the would never be anything to litigate and not surprisingly therefore the standards set forth and he is not that the case provides clarity and a point of prior confusion and the standard for what constitutes a new rule is whether the case breaks new ground  imposes a new application well isn't that a new obligation here because basically you've told us he doesn't want to hear of he doesn't want to have the sentence that he got and he's not claiming his pleas and voluntary he wants to have a trial because the state the defense and the judge all messed up when they didn't give him forty five years so isn't that a brand new rule are we really breaking precedent here if you go any case that says that that you get to go back to the court and have get a clean slate just point to a case anywhere in any case you've ever been milieu with where there was a loud and then and then tell me it's not real well again i don't know of a case involving exact factual circumstances where you know the certain amount of time has passed that is comparable to this case but people versus wade and people vs were both cases where the court the want someone to be sentenced to more than what the law law and i think every defendant would have the right to play from the first day till the day they die if they were if they were given a sentence that was greater than  us that with regard to the fifteen twenty twenty five the wife legislation the state cannot agree to go lower than the enhanced his net what they said and avery why isn't the question of whether there was precedent there was no cite there's no cases that said the state could do what they did here and so isn't that the answer isn't the answer there was no precedent before that told the state they couldn't do this and therefore now there's precedent that says you can't do it state construe to be the holding of white but we can see even from the very first sentence of the white opinion that is where the court set forth the it framed the issue that it was deciding and in the introductory cause of that sentence the state isn't citing precedent for that is because it's not something you even consider to be a question in the case that it was deciding it merely felt that the question before it was when it is clear from the factual basis that a defendant is subject your honor and what the state argues is that the new obligation is that is that a prosecutor cannot provide in its presentation of facts that affect a firearm was used in the commission of the crime and and and then turn its it argues that there's an change to the prosecutor's discretion in negotiating a guilty plea but the prosecutors has the same discussion it always had to go legislation the discretion that the state's attorney has enjoyed for many years to negotiate lower sentences has been taken away by which is a two thousand and four case and that notably is the same year that mr young answered his guilty plea and in that case the prosecutor amended the indictment for armed robbery with a firearm to read that it was for armed robbery with a dangerous weapon and properly ensured that the plea agreement would not be voided and that is well before the way case and it is evident from cases like that that there was and wide confusion in the state of illinois for prosecutors as to what they have to do to ensure that the guilty plea that they negotiate with the defendant is not for weight and i would argue that the instruction that the why isn't light in itself an indication that there was a fusion because we have a stiff that that is true i mean obviously there there was a mistake made in this case and mistakes are made all the time in the law but whether that means that white broke new ground or but where we can begin with the district be empty right but notably the supreme court in that case did not seize the opportunity that it had to explain why it has a new rule and so i think that does at the very least suggest the the split is illustrated that what drives that split is the same thing that drives the difference of opinion between the people and the defense in this case and that is fundamentally what is the holding of pierre white the defense  holding of caraway is really about it already of the court to sentence a defendant who pleads guilty to murder that is committed with a firearm and says that the holding of white really stems it's primarily from issue and why you don't get to are not to deciding whether or not a sentence that doesn't include the fireman hanson it is void unless you first decide whether the firearm and handsome and were triggered or applied under the circumstances and regardless of whether the state and its discretion which is and long recognized as the executive seeks to pursue it as an aggravating factor so you have to answer that question first and that's really right here white focused on madonna's only cited white says they say they weren't seeking the   actor in the n p r white yes i don't really i know that he was if i remember the facts correctly but he was admonished within the the twenty to sixty i don't recall if if on the record there was an explicit statement by the parties that they were not seeking aggravate but i don't think it was disputed n p r white by any of the parties that that was the intent and entering into the plea the question was whether or not that was permissible but based on the state's longstanding you know discretion and authority to enter into such pleas and it illustrates the purpose behind the teeth retroactivity analysis i understand what justice mcbride was saying here white was a direct appeal hence there was no lack of time but what the what the rule of t does and what the thirty years later correct correct so that's where that i think that the gap makes the difference because the state has an interest in the financial finality of judgment and it also validates courts reliance on reasonable precedent if you wrote to the president before p r white i don't think anyone could say and certainly defense has not been able to point a case that would have compelled the conclusion reached by the supreme court n p r right now certainly they cite are not and it and certainly they discuss how their decision is not inconsistent with established precedent but i submit that that's always going to be the case because rarely is a high court's opinion ever created out of whole cloth it's always if i mean i can't think of an instance where wouldn't be there maybe a that you can send back please not based on voluntary but based on the fact that the sentence of post wasn't as large as of what is statutorily permissible would be void but that doesn't necessarily mean as we've seen it's well established in case law that a portion of a sentence for example that conforms with the statute tory guidelines can remain intact i think that that's that's that's part of the problem that we're and i mean we could go back to whitfield well i just don't know if if if the the new rule is that state doesn't have any discretion to negotiate  that the state still does have discretion going forward from here white to negotiate down to a to the regular on enhanced murder sentencing range if they are man the charging instrument and put forth a factual basis that does not include the firearm language or trigger and thereby triggering the enhancement she says that that that is the holding of the majority and you know courts i think are still evaluating whether that is implicit in some of the language and caraway could certainly be you know read to suggest that we don't have that authority however i think if you read donaldson it appears that that it seems like what phrase is the argument to the three did we raise the a stop argument and avery i don't recall off the top of my had but i could take a quick but you get into here that he's a stopped from that there should be you know some sort of well maybe you did i think that perhaps it was something raised him here we argued is the retroactivity i know you argue that i mean that's that's the only argument that we put forward in our brief putting the retroactivity new rule aside whitfield introduced contract principles i think the for the first time explicitly into criminal plea bargain negotiations and recognized in morris when they did the retroactivity analysis that not only was that introduction new or novel but also then that there was a remedy which was the changing of the sentence to conform with the agreed upon sentence of the parties or what was the understanding of the parties and now feel follow my logic if you segue donalson to donalson talks about how there was a mistake a mistake in rott a fact which frequently happens in contracts and that within contract law on contract principles it is a proper and appropriate to go back to amend the terms of the contract to give in fact to what the agreed intent of the parties rights and that's what it does the defendant and donaldson argued that i pled to a specific sentence i agreed to a specific term of years plus another specific term of years and the on a supreme court said no you agreed to an overall sentence so we can go back and change to amend that there's absolutely and i think that the bad analysis in donalson supports just concluding paragraphs in sneath which would suggest an alternate possibility that we could this court could send a case back to the trial court and every man and the parties could be give the state could be given an opportunity to amend the proofs the factual basis illinois that the state and the defense could enter into agreement where a defendant pled guilty to murder within the normal murder sentencing range and that that understanding changed after white so that could be deemed a mistake of rather a mistake a fact that we did amend count one in this case you will know we did strike the route armed with language and changed it to with a firearm so it could also be construed as maybe a mistake of fact where we thought that by amending and then submitting this to regular factual basis that we were putting forth sufficient facts to to put ourselves outside of the enhancement i don't think anyone would have when looking at retroactivity of a new role i think sometimes it's it  helps clarify to look at what practically would have taken place in the trial court before the decision and after the decision and i don't think that i think it's pretty safe to say that neither defendants were prosecutors nor how judges would have thought that the way to enter into a negotiated plea were all parties were in agreement to a murder within the twenty to sixty year range was to strike i reference as to a gun or a firearm in the count that was being played guilty to and then to offer  a factual basis that was sanitized of the fact that the the at the murder was committed with a firearm and that's right here white suggests going forward would be the way to enter into such a plea and then donaldson really kind of find like an escape clause you know being in a position where we have to let somebody years later withdraw their plea and go back to square one because the sense because because of the unique situation where the defendant didn't get as much as he was supposed to get and then finally white was a direct appeal and i think that donaldson which i believe was an appeal from a collateral proceeding i think that you know the illinois supreme court defense counsel posits that they could have answered the retroactivity of white issue  donaldson i would respectfully disagree with that i think that because of the factual differences that and the fact that and it would not have been appropriate and i think the fact that they dismiss white at the end shows that they're just leaving it for another day i mean they don't say that white that white isn't retroactive they say white is not a political the fence reliance donaldson's reliance on white is is misplaced so i mean i do think that and then since then we have for that early on that the enhancements were mandatory and i would note that in this case it defendant while he did file a motion to vacate his plea it never i mean there were there were motions to vacate as to withdraw  supplemental motions to withdraw his plea there was an appeal from that which was affirmed then there were posting directions and supplemental post conviction filings and in none of those cases none of those filings was the claim that his  void based on the lack of enhancements ever rates certainly if this was such a clear issue and a outcome that was compelled such that as defense suggests we have to apply this retroactively defendant would have in the course of these years raised it i mean certainly the firearm enhanced months were largely on everybody's mind you had the hostile trial morgan lines of cases the fan and then white did it the stuff and that did not so i would suggest that that supports the state's position that this was not that this is a new rule that the outcome and white was not compelled by existing precedent and that under the teagan alice's set forth similar to a very most take every does a very good job of taking here white and the supreme court's analysis and morris and putting them together and i would submit that that this court should follow the well reasoned and in avery and find that the decision of your weight does not apply retroactively if there are no other questions thank you honors indication for this court to look at is the language that the state and every court seem to be relying on from within white for that and that comes in paragraph twenty seven of white's opinion where the court explained that in that case in white the enhancement was triggered because of its inclusion in the factual basis and i just would note that it's important to consider the context of why the white court provided that language it was responding to the state's  citation of people versus summers and explaining why the state's reliance on summers was misplaced the state offered that for the fact that it could have conceded a version of the facts without the gun and the white court agreed that while it could have unlike in summers the prosecutor and white's case did not concede a version of the facts of the gun because it was included in the factual basis and so that language was part of white's decision because it was missed it was explaining why the state's reliance on a particular case was misplaced not because it was the holding of the case with regard to the alternate remedy that has been discussed the smarting i would just emphasize that the justice schmidt did not actually impose the remedy that he suggested in that case and people versus smith the alternate remedy and the two other justices did not even sign on to that opinion it would be completely unprecedented for this court to find that the appropriate remedy in a situation directly analogous to wh they came up with it that's illegal with them yes but what the supreme court also did was explain why it was a situation differently from why and ultimately the only time that  for sending a case back to amend the factual basis or the indictment the only precedent that we have is to amend and donaldson they essentially made a mathematical change to the minutes there was no going back to the position before the guilty plea to make changes in this far as the actual facts that were before the court it was strictly mathematical reconfiguration of the sentences because of the fact and that was permissible the court specifically said because of the fact that only that the sentence was able to be reconfigured consistently with both parties positions in the in the benefit of the bargain but also because of the fact that the defendant there was properly a he was admonished that the sentencing range was twenty to sixty years for the murder and six to thirty years for the time and there was no discussion of the actual entry of the guilty plea with regard to the mandatory firearm han