good afternoon your honor steven becker or the poet nancy rush thank you judge this appeal provides a case of st impression under the new domestic violence amendment mission for relief from judgment statute this follows  similar to the revolution in juvenile sentencing law thus in the same manner the legislature passed this amendment to provide victims of domestic violence to have a chance to have mitigation evidence presented identify a defect on the face of the pleadings secondly whether the court erred in concluding that the evidence that was presented in the petition was not sufficient to show conclusively that it could change the that because the judge was unable to identify any defect on the face of the pleadings that he errored in granting the state's motion to dismiss as the court is well aware in civil practice a petition for relief from judgment follows the same rules of civil procedure thus the complaint or the petition the allegations must be taken as true and in a light most favorable to the to the petitioner facts are not supposed to  be inquired into and all that the petitioner is required to do is to set forth a prime aphasia case in this particular instance in the state's motion to dismiss there was no defect identified whatsoever  and during the hearing we raised this issue and even after the judge ruled that we had not met the final element with respect to the conclusive character of the evidence i asked preponderance of the evidence  that's correct judge the the statute reads that the allegations in the petition must establish a be sandwiched by a preponderance of evidence to present a meritorious claim so that's correct this is the kind of an middle i would say that's correct judges because it does say about the allegations if two state america torrijos claim the allegations themselves must be demonstrated by a preponderance of evidence that's that's what the statute reads and but there still is the requirement in civil practice law for a petition for relief from judgment like a complaint that all the allegations have to be taken is true so i still think that means that the  credibility findings at the pleading stage that would be that would be improper the court is supposed to look at the allegations taken is true and the only thing that the court needs to look at is do the allegations in the petition in fact present pleading because of the evidence that was attached the petition so i think that the civil practice rules would prevail here as far as because in vinson for example petitions for relief from judgment must be construed as a same a forcible felony but courts are simply not allowed to weigh the evidence at this stage because my client would never have a chance to set forth her evidence in mitigation and he's basically been ruling on the merits which is is finding that the evidence that was presented was not sufficient to conclusively change the outcome of the sentencing hearing in support of the petition on this rich attach multiple affidavits as well as evidence allegations the most serious is that right before the kidnapping took place that again the edwards codefendant an abuser basically threatened her with a gun and said that if she did not go ahead and drive him to certain places late at night that he would kill both her and her son he also said that someone was threatening him and that they were planning to kill his ex wife and his children if nancy rich did not comply  and in addition he also made several phone calls to her in a made up voice making her think the someone was in fact threatening him so clearly this evidence especially the threat of the  gun and killing her and her son is more than sufficient evidence to show mitigation because even under criminal law that would be sufficient to demonstrate a compulsion affirmative in a criminal case so clearly the judge  in ruling on the allegations that we set forth with the evidence aired because it was for a legal affirmative compulsion defense in a criminal case it's more than sufficient to demonstrate by a preponderance of evidence that she should be allowed to present this medication of events in addition your honour's this is exactly the type of evidence that the legislature looked at  satisfying the burden for getting a new sentencing hearing interesting in the legislative session there was a discussion between senator writer and senator raul and senator writer said so by the way for example where an individual is a passenger in a car the driver which goes to the liquor store and there is an armed robbery a charge of some kind of accomplished theory or conspiracy theory in that instance she could raise as a factor in mitigation the fact that her husband had abused her for a period of time and she was under the threat of serious physical harm were she not to ride in the car and be part of this is that is that what the bill in visions and then the presiding officer senator herman asked senator raul and senator raul said that's exactly right senator writer now i find it interesting that senator role of course is now the president of the present attorney general of illinois and he said that just about the identical type of evidence that mr rich has set forth in her petition would in fact be sufficient under these circumstances to entitle her to saying hearing for mitigation of evidence so i don't frankly understand why the state is disputing it in this case because the attorney general himself when he was a senator said evidence directly analogous to mr rich's cases it was almost identical where she was told to drive him in a car late at night to certain locations under threat of having her and her chick child killed how that would not  or the judge has found that it's not conclusive evidence and yet he's doing so again this is at the pleading stage he's not allowed to weigh the evidence he has not heard the credibility of the witnesses that provided the  not heard he's not weighed the seriousness of the offense versus mr rich's potential for rehabilitation which he is required to do under the proportionate penalties clause of the only constitution i just think this is totally an error to do on the face of the pleadings on a motion to dismiss this is just not the judge's job to weigh the merits of the case he is supposed to look at the allegations take them is true and that being the case i cannot envision anything more hearing in addition the state has argued here that basically the seriousness of the defense is what should be considered by the court and she has basically said that the state should not be compelled by the four corners however as the court will note the plain language of the statute says it almost rich is required to demonstrate is that she was convicted of a forcible felony under subsection one of the five if the da not say that she's excluded if this there was brutal in his conduct or if the offense was so serious otherwise if the legislature intended to exclude individuals involved in these type of murder cases they would have done so those factors factors in mitigation at her original say yes because that kind of evidence was not considered by statute as mitigating until two thousand and sixteen when the legislature went ahead and amended both this domestic violence amendment and the other section to section fifteen in to the to the criminal code so that's when this became mitigating evidence and so at the time this evidence was not considered mitigating and it was actually submitted for other purposes for example for showing lack of mens forever or lack of science her and her attorneys were also alleged to have been ineffective at the time so this was not considered mitigating at the you and then lastly judge i say i don't have too much time so i'll try to get my last issue which is regarding errors here and why the judge should be removed on remand there's a case called people versus radius which i cited in my brief which is almost identical where a judge in a post conviction case at the pleading stage stated basically that he did not believe the evidence was conclusive and off in a police torture case to continue the case on for nd stage proceedings and there was twenty three instances of misconduct alleged against a detective and so the appellate court reversed that decision and then important issue in the case i see my time is over so thank you very much  hearing going forward if i have opened a door or a little bit to cases that were already final after time the legislation would pass but it only opened the door a little bit i think if i period that are set forth transcript shows that the court actually did consider much of the factor the she's relying on here so the court recognizes she was not the principal actor danny had with the principal actor but the evidence showed in the jury that she was an intentional unknowing participant in this kidnapping scheme in which even small with alternately buried alive based on it was a consideration  the one hand of her level involvement her lesser involvement and her potential for rehabilitation obviously at the time she had no criminal history the court recognized this and said not it was you know doing those factors weighing in her favor in nature of the crime here compounds me to the most serious sentence and that's where this discussion should be starting right then new evidence that petitioner has of the domestic violence have altered that and so this was presented at her trial there were q two places that this evidence was put before the jury and then a trial judge there were her police statements many of which were taped and then played an in form for the of violence against herself and her son and claim that those were the reasons that she was a participant and i'm going to protest and should be acquitted participation in this murder much of that evidence why it before the court it was not presented at or sentencing hearing but it was considered her sentencing sciri sentencing hearing because the trial judge referred back inside you know i'm considering trial evidence here so much of this was directly in front of the court and essentially what's being supplemented here is not for the most part evidence relating to abuse by her codefendant she is adding some evidence that there were other people in her life that you know committed acts of domestic violence and she refers to her father her st her former boyfriend that can be considered new and supplemental but it is removed from not to make question here which is sentence was entered thirty years ago you know based on throughout consideration a very lengthy record is that new evidence enough for her she would team relief from her life sentence and at this point she her questing is basically a brandy sensing hearing i would note that this will be addressed to remedy and certainly here where there was such excessive testimony that were there any you the evidence of domestic violence by other partners and by her father none of that with the for the for at the time of sentencing so those would be fairly considered new but it w so the question the court has to look at what was the basis for the sentence originally and the way that the statute is written explainer that the ultimate question is what can happen with this new evidence of mad if known to the original kinky county certainly you know for decades the court we live very heavily on the her recognition of the crime she is in knowing participation in that crime even though she was not a principal actor she could not have been convicted if she was not annoying because that would have been a different it was b jackie it was rejected even based on much of this evidence in her statements to police and her trial testimony attempting to say that she was an unwitting participant who was being i'm he he did it and i do dispute i mean he was very clear that what was missing here was that discussion of what's the what was the crime what was the basis for the  he told petitioner if she wanted to read plea in has chosen not to him and is really persisting in an argument that this court she just completely ignore what the evidence was a trial what the original sentencing was and to limit itself she just the four corners of the i did want to briefly address the way in which this where i think this is an issue of st impression on her team fourteen on one p five but the background principles of how to fourteen and one is intended to work are case it is a separate and a new reading but there is a reason it has to be filed the original is and that's because leading up to the judgement all of what has happened in the trial has been up to that point is relevant here it there was a pleading the fact as we've noted but also under twenty one thousand four hundred and one this question not avoided looking at the allegations in the light of the original record here the travel record that was would you have gone to showing this element would have been a full and fair discussion of what the crime was it is fashion and what the bases was for the original sentence and then an attempt to grapple with that evidence to show  certainly in rendering its ruling and the sport should also not be persuaded that this should somehow be overlooked because the issue here is what should be the sentence for this crime and i don't want to answer that question if we have to look at what the issue which i just wanted to really briefly get to is if it if it succeeds at those two stages there generally have to be a testing of the evidence and evidentiary hearing so here is i don't think we proceed directly allegation so what still needs to be done if this court find that it was initially sufficient is a testing of the credibility of those allegations and i don't think in any way the trial court did attempt to resolve any credibility issues here my apologies thank you judge i don't understand the attorney general's argument that there was any defect in the pleading missal connell did not know any defect to the court she simply asserted that there was a conclus allegation i don't understand it either this petition was filled with multiple f a david's it was filled with a new evidence that had nothing to do with the original case from a evidence deposition that was taken of danny edwards where he admitted to carrying out this abuse against miss rich in addition we have other affidavits from individuals talking about other abuse as well as an expert opinion from dr van nada regarding the effect that this would have on mr issue at the time so this record is filled not with any conclusory allegations but with evidentiary material to support the of the allegations in the petition  this case we think should go back for re sentencing hearing and i do agree the judge has clearly made his mind up here already i don't think he has a right without us having a re sentencing hearing to make a which is made based on the new science of brain science social science and as i'm sure the court is aware there have been multiple cases abroad for juveniles and emerging adults this is similar to this amendment was passed by the legislature with the support of attorney general raoul for the purpose that there is new brain science that demonstrates the effect upon women who are abused by individuals just like danny edwards who threaten to kill her and her son if she did not go along and drive him to these areas late at night there's no evidence that my client had any direct participation in the kidnapping or in the burial of mr small the only allegation ever made against her was that she drove him to certain locations late at night because she was threatened this is the identical purpose that we have this amendment for and i don't see any basis for  objection here and mr o'connell had also said that you know they had agreed to go back on the merits if the attorney general after the case was remanded the st time if they wanted to argue the seriousness of the offense and the merits of this case they should never filed a two thousand six hundred and fifteen motion that was their own choice if they wanted to argue that this offense was so serious that she could never get a new sentence they should have gone immediately sentencing hearing and not filed a motion to dismiss it was their choice they've filed a motion to dismiss on the pleadings once they did that they were boxed in by the four corners of the petition they have no one to blame but themselves general wants to come to court like they did with the trial court in order that we have to review the whole record the whole record is not on display here what's on display is the petition and the evidentiary material that we attach to the petition the judge sole job as the arbitrator was to look at the pleadings in a light most favorable to my client and to look at the evidence that was attached to the petition and when you do so as i mentioned this clearly satisfies the compulsion of defen e in a criminal case if it does so it clearly would permit the court to make the conclusion that miss rish is at least intitled based on the new science and the new amendment to go to re sentencing hearing where the lower court judge may consider the credibility of the witnesses where all the evidence may be marshaled and at that point missal cow can argue till she's blue in the face about how serious this crime is but until we get to that point my client has a right to put on her mitigation evidence of domestic violence as i mentioned the amendment minute makes no exclusion for the severity of the offense that is just not anywhere in the plain language of the amendment all she has to satisfy is that she was convicted of  forcible felony and that she was the victim of domestic violence abuse which she clearly was and on that basis your honor i would ask that you reverse the trial court's ruling because it was clearly erroneous on that you would send it back for re sentencing hearing and because as justice holder said the judge had clearly already made up his mind on the central issue in the case we think that there needs to be a new judge a sign was similar because they said they said that prior to this time and if you'll see in dr van not as expert opinion that was attached to the petition she mentioned this that that similarly there's been a revolution of brain science  coming forward and that's why this was the basis for this amendment and so the new evidence that we have submitted is in part danny edwards admission that he did use these abusive tactics against misreads as well as back for resentencing hearing thank you thank you so much