matter there are four issues in this case those issues involved crinkle hearsay evidence and ineffective assistance of counsel claim for failing to plead an affirmative defense in sentencing issues i'm going to focus my arguments on the issues involving kringle and sentencing hearing today if your honour's have any questions about the remaining issues that i am not addressing in my argument i would be happy to answer those questions and our supreme court people versus  created an obligation for trial courts to fully address criminal defendants proceed claims of an effective assistance of counsel or court stated that an initial inquiry is triggered when a claim is raised and that claim does not need to be supported by facts or examples or witnesses on his behalf the trial court acknowledged that he had read the p s i i and the statement that mr ferguson stated however it failed to acknowledge his claim and to provide some context to this claim before trial mr ferguson expressed his frustrations with his attorney and stated that his attorney was not looking for witnesses on his behalf and counsel stated that he had contacted all witnesses except for one and mr fergus i'm contact information for that witness mr ferguson stated that he could write give counsel the name and draw a map of where to find the witness the trial court asked counsel if that would be enough for counsel to try to find the witness counsel stated that he would if he was given that information and there were no other conversations about what occurred or counsel's actions to attempt to find this witness we do know at trial mr ferguson was the only person to testify on his own there were no other witnesses presented by the defense and people versus craig and the defendant raised a claim of an effective assistance of counsel in his p s i statement the claim did not expressly say that it was ineffective assistance of counsel but it called i'm counsel's failure to call witnesses to support his defense the trial court did not address the statement and i'm review the appellate court held that a statement included in a p s i i is sufficient to trigger a thinking here on our additionally another case addresses this issue a statement included a p s i i mr ferguson cited to this case and his reply brief and we would like to know that this case was decided after mr ferguson filed his opening brief similarly the defendant in this p s i made statements that he did not talk to a lawyer before trial and he wanted to testify again did not express the state claim of ineffective assistance of counsel ever the court o by case you're referring to has not read people versus sherman sherman yes in that case on review the court held that when a defendant raises a claim in a p s i i that is enough to trigger happened at trial the last thing that the trial court heard about this claim was that mr ferguson was going to give counsel a map and he was going to attempt to locate this witness the record is silent on whether coun attempted to locate this witness or mr ferguson did provide that information to counsel or if counsel spoke to that witness and decided that it would not be a good idea to call that witness so the state's argument that this is trial strategy is premature the trial court should have asked and these are supreme court says that the requests the complaint about counsel must be clear enough that the court know it is a complaint about counsel and in this case all he said was he didn't call witnesses on my behalf or no witnesses were all on my behalf doesn't really complain about his lawyer at all anymore so he was a witness on his behalf yes your honor so when he said that there were no witnesses on his behalf it can be inferred he was talking about other witnesses not just himself so in this inquiry is required in this case should be remanded for the trial court to ask mr ferguson or counsel about this claim in terms of the sentencing issue trial court has wide latitude in sentencing as long as the court does not consider it competent habitants or improper aggravating factors in this case mr ferguson was convicted of home invasion and residential arson in aggravation the court found that mr ferguson's actions caused  threatened serious harm and the court specifically discussed how anderson and her sister lost physical property and emphasize the items that were lost the court said when it looked at this factor it weighed strongly in favor of a harsher sentence arson is that a person's home is at least partially destroyed which necessarily also includes a fair personal belongings are also destroyed the legislature made the offense of residential arson harsher than arson because it involves a person's home because mr ferguson receive the maximum sentence for residential arson it cannot be said that this improper use of this aggravating factor did not in fact  furthermore there is trip the state interviews triple hearsay evidence of a hit list and statements made to a dispatcher the state argues that mr ferguson discussing how he had joked about a death wish list to his friends actually supports that there was a hit list however there is a difference between mr ferguson having it with everything that has happened in his life where he was hit by a drunk driver and that person was not punished and ended up physically handicapping him he was shot by somebody and that person did not go to prison and his son was stabbed to death and one person was charged in there was a group of people that were involved one person was charged with  degree murder and most people are not even charged so it's understandable that mr ferguson might not be saddened to see somebody who has constant harm to pass away but that is drastically different from a hit list that is targeting members of the  community the case of people versus wallace is instructive here that in that case the defendant was charged with i believe a criminal sexual assault and there was triple hearsay i've heard it evidence introduced i mean i'm charged acts that occurred in a different state in that case the trial court recognized the problems with the evidence but still said that it was something that it could consider on review the appellate court held that because there was severe issues with the reliability of the trial court could not consider that evidence at all so even though in this case the trial court recognized the reliability issues it still stated that it was something that it consider here again mr  ferguson receive the maximum sentence for residential arson and sixteen years above the minimum for home invasion so it cannot be said that mr ferguson sentence was not influenced by these he's improper considerations and therefore a new sentencing hearing is  in this case does the court have any further questions so the relief you're asking for is a new sentencing hearing and it crank call inquiry yes in addition to  honors and may it please the court my name is michael lennox and i represent the state in this matter this court your firm the defendant's home invasion and residential arson conviction because one the trial court conducted adequate into the defendants in effect of assistance of counsel claims to the trial court did not abuse its discretion when properly allowing witness testimony to then existing mental or emotional condition and three examine the factual basis of the defendant's claim if the trial court determines that the claim lacks merit or pertains only to matters of trial strategy then the cortney not appoint new counsel and may deny the pro se motion standing further the trial court can base its evaluation of the defendant's pro se allegations of ineffective assistance on its knowledge of the defend of defense counsel's performance at trial and the insufficiency of the defendant's allegation on their face to at least ask a question of the defendant yes your honor but in this case there have been so many there have been three separate in consider the before trial inquiries and not be after trial inquiries your honor the the the point that i'm making is not that one should be considered in the other should not the point that i'm making is the court had full knowledge of these issues and so to conduct a th inquiry into this information would would would not be an effective use of the court's time but let me ask you this does the state concede that the information that was raised in the p s i i was sufficient for the court to consider a crank will inquire certainly as the st and nd districts or are coming out and saying right yes your honor but and that actually brings me to another point that i was going to address so  sherman were were close to the case here and there is a clear distinguishing factor which is in both of those cases the court was tackling a case where a crank will in an initiator once after the receipt of a p s i i here the defendant and the defendant can and will certainly correct me if i'm wrong but i don't believe it's the defendant's position that the court never conducted create i believe the defendant's position is that the trial court should have conducted another inquiry after receipt of the p s which allows allege the same claims for the th time and it was it was after the trial and it was just a continuation of some of the claims he had made earlier correct yes your honor and in reference to the claims that he had made earlier on page one of one of the record the defendant initially said that he quote asked for things and had asked for witnesses to be subpoenaed in his interest but his counsel quote told him the county was broke and it didn't happen trial court or trial counsel immediately refuted this the trial court then inquired whether the defendant had given his counsel any witness names and also asked what is it specifically that you think we should be doing or that you think you should be doing and isn't doing or isn't doing and should be doing you said there were witnesses then that was on page one hundred and ten dollars that offended asserted then that his attorney should be investigating a perceived conspiracy against him which he later lumped his own attorney into as being part of a corrupt system part of the corrupt system of christian county on pages one hundred and eleven thousand one hundred and twelve the defendant admitted that the witnesses he was demanding be subpoenaed were not fact witnesses to the actual occurrence and on page one hundred and thirteen the trial court asked trial counsel if there was any witness he had not yet contacted and counsel said he had attempted all but  one later the the defendant again to cry of his lack of witnesses and that was when this map was drawn up to find potential witnesses but after this complaint the defendant stated on record during trial that he felt quote quite confident that he was being taken care of by his attorney and that's on page six hundred and seventy nine dollars of the record further the calling of witnesses is well established as trial strategy within trial counsel's control and counsel might have quite rightly dean that calling a witness that does not factual knowledge of the event would only ultimately hurt his client mr lennox i ask you whether you the state concedes that not calling a witness was sufficient to raise the crank call inquiry and you just told me i think a few minutes ago that it was sufficient to raise so if it's sufficient to raise a crank call inquiry how do we get to trial strategy i'm sorry your honor i must have misunderstood your question before i thought you were asking would these allegations be sufficient to open a the county didn't have enough money or they had gone broke and they were going to call witnesses that i think that that would be sufficient to start a critical inquiry but of course that is ultimately trial strategy whether or not to call witnesses especially in this case and the court had information leading to that but if you just look at the statement in the p s i i the statement along do you think th statement alone was enough just to trigger at least a question by the court yes your honor and if there had not been questions previous to that point there would be an issue here but in reference to this  defendant's trial and challenge the integrity of the judicial process regardless of the closeness of the evidence it's in the supreme court of people versus stacy stated it was it is well established  settled that the trial court has broad discretionary powers in imposing a sentence and the trial court's sentencing decision is entitled to great deference because the trial court is generally in a better position to do that a court can consider the degree of harm of an aggravating factor even where the factors necessarily present in the crime the defendant states that these cases only show this is a fact specific analysis without at all in gauging in  specific analysis or distinguishing the cases i cited from the case of bard thereby failing to show clear and obvious error for a plane or analysis therefore this court should affirm the defendant's  try to see if there could be a issue to resolve because i believe his attorney did at one point attempt to withdraw because there was a breakdown in communication so it was it was good for the trial court to address these claims to see if he could resolve these issues that were happening however again what occurred pretrial does not necessarily speak to what happened at trial the main issue is that mr ferguson said he was going to give them out for this one witness counsel said that he was going to attempt to locate this witness the trial court acknowledged that it read it mr ferguson statement that was included in his p s i about his claim that he had no witnesses on his behalf that the trial court did not acknowledge his claim so it's not clear that the court would if adequately considered what happened if there was no not even an acknowledgement that this claim was raised so because of that this this case should be remanded at least ask one or two questions about mr ferguson's claim briefly in terms of the sentencing argument mr ferguson argues that under the degree of harm approach that our supreme court laid out the trial court is not allowed to consider the end result of the harm and there were i believe two cases that the state cited two and those cases involved murder cases where the court addressed leading up to the death of the victims but did not use the death of the victims and next case mr ferguson the trial court talked about the all of the physical property that anderson and her sister lost that is an end result of presidential arson residential arson involves the burning down or burning at least partially of a person's home so we argue that it is an end result and therefore there is an improper aggravating factor the trial court does have why discretion in sentencing however the court does not have discretion to use an improper aggravating factor to enhance an offense and mr fergus n receive the maximum sentence in return for residential arson so it cannot be said that this improper acting factor did not increase your chance when the trial court expressly noted that this aggravating factor warranted a harsh sentence in this 's due process rights were violated when the trial court considered an improper aggravating factor that was already inherent in the offense and the court considered evidence of unsupported bad acts based on their rebuttal hearsay furthermore as argued in the briefs mr  ferguson should have his convictions or vers your mandate for a new trial because numerous witnesses testified about improper hearsay evidence and mr ferguson received in fact of assistance of counsel both which tonight mr ferguson a fair trial does this court have any other questions