in this case the people seek an order of mandamus compelling to respond circuit court judge to sentence the defendant michael drew in accordance with a code of corrections if you can back up and provide a little factual background december twenty fifth and the defend incarceration potential to incarceration and indeed that is what family held but as the state responded finley had no application here because by that time it sensually been overrule nevertheless the court took the matter entered by his men and when the parties reconvened the court granted the defense motion to strike stating that he's compelled to follow the third district in that he tried to follow the third district whenever he could accordingly because finley had not been exclusively on room yet trial court could on its own have made a determination that based upon the elder sarra nichols those cases that the effect of it was to overrule the case upon which fairly rely yes certainly under these circumstances i grant that there may be some situations where be difficult to determine but here nichols explained express lee overturned b misdemeanor conviction felon under scott vs illinois because there was no prison term post is also valid when it's used to enhance punishment as a subsequent conviction and this remains true even though that sentence entails imprisonment even though that is your the basic question and i truly am confused by this doesn't the statute save that every person convicted of committing a violation of the section shall be guilty of aggravated driving under the influence of alcohol if this person has violated the section for a third or subsequent time so why wasn't that prior do you why a felony as well dissenting scheme has changed as you may recall the ninety fourth general assembly several years ago amended you wisely actually to increase the penalties there were seven eight nine amendments during that general assembly so it could be that the statute was different at the time i'm not aware of that  nichols does not say anything about mandating imprisonment but nichols does say that the young counsel misdemeanor conviction can be used to enhance even though the sentence entails imprisonment and i would submit that under nichols this was defendant's fourth dui conviction or his fourth to you wife under section eleven dash five zero one d to see the general assembly has provided that the penalty for a fourth dui violation analysis or i don't think it has an effect on the analysis i know that the court in family was presented with a similar argument to be elected not to decide that i don't think it should have any effect  court said that consistent with due process because of the more relaxed evidentiary standards that sentencing would necessarily have to show prior conviction as long as you could show kreiger offe so i believe that consistent with nichols and with your hypothetical it would still count as a  judge thank you and again what i'd like to say to the court is this i think what we are analyzing this morning here is really the absolute extension of scott versus illinois of our singer of nichols  united states supreme court justices have fallen that cases where defendants were not represented by lawyers are different different in a very negative way so what we might really be deciding this morning is the use of two products that our system produces one product that is produced with the assistance and guidance and if you look at the the getting an opinion you know i could go into detail about how important it is to have a lawyer but we all know that as professionals but it's really the use of two products one is accepted in our system and the other one is considered to be substandard warren black douglas clark harlan brennan stewart white goldberg powell stevens rehnquist berger blackmun rehnquist again wrote the opinion in scott burke ginsberg all have rendered opinions in this case that cases where a defendant is not represented by counsel are different and here i think is the logical conclusion of the appellate process is it  use of these things can you use them your honor to put a person in the penitentiary mandatorily and without discretion the fact that the state has chosen to challenge this matter by mandamus i would suggest this court may r issues and i'd ask you to consider that first are they really saying by raising it by mandamus that judge kinney was with out the right to look beyond the paper convictions and i submit the custis versus united states which clearly holds that one of the few grounds in fact the only ground that you can collaterally attack a prior conviction would be on sixth amendment grounds so i do on that particular issue alone ask this court to deny the mandamus because it seems to be good practice that a judge if a defendant properly presents it that a judge would be able to look past the paper convictions especially something as important as mandatory penitentiary time to look past the paper convictions and say all right mr defendant if you have something to present to us which may lead me to think that i should not consider this conviction that i be allowed to do so isn't the state really saying that judge kenny could not do that the second issue in this case involves don't we have to nichols basically accepts justice policy the sentence baltazar but if we look at the actual opinion in nichols i think there's a warning being sounded by justice souter and if we look backwards justice paul also raises this warning and scott in the warning is exactly the situation that i submit we are presented with in this case on page seven fifty two justice souter talks in nichols because the guidelines and remember nichols was a case that involved the federal guidelines and justice so one well into his his concurring opinion talking about how the court had the right to disregard it it truly was a question of discretion in the federal guidelines they talk about the court has the ability to say you know what this is over raiding this individual's actual criminal history and i'm not going to consider these particular points and so there's there's a leeway there there's a a release valve there and just as souter is talking about that he talks about because the guidelines allow the defendant to rebut the negative  ication to which a prior on counsel conventions give rise they meaning the guidelines do not ignore the risks of unreliability associated with such a conviction and he goes on further on page fifty seven fifty to say the obvious in serious argument that the line is crossed and i ask you to consider this case when a defendant is sentenced to imprisonment only because he had he had been convicted in a previous case without a lawyer that mr  case very much a warning is sounded in the in the final paragraph and i'm not going to bow much further on just the sort of says concurring opinion but it's what a wonderful language he uses when he says he would be shy of indorsing language that may be taken as addressing the the automatic raising of the level utilizing on counsel convictions to the level where an individual no longer has the right nor can the court any longer consider the possibility of probation and i would submit to you if on council prior violations your honor are different and there really isn't one united states supreme court judge that has not said that if truly uncountable prior violations are different then isn't this really the bridge too far isn't this really the point where we have to stop utilizing these because in that and in the wonderful language in our singer tells us what the underlying basic for our signature and our seniors the case that says that if there's a threat of imprisonment that an individual should be allowed to do to be represented by counsel but isn't the real underlying reasoning of  cases the reason we have so much litigation why this state and this court has spent so much wonderful jurisprudence on the six men in issue is because they are not reliable and i would suggest to this court the following illinois scott versus illinois i really might have to a certain extent raised the riaa delineate the liability issue to a new level your honor so i ask you to consider this for a second in the state of illinois right now in the one thing that he walked into that courtroom most fearing most concerned about is going to channel so now he knows that we won't the state will not be seeking a jail sentence in this case and but there's one other thing that he really knows and it's inherent in our singa it's inherent in the rush rush language if you remember the main opinion in our singer there's one other thing he knows he's not going to win he's not going to be able to beat that skill it be in conflict with what you quoted from souter i submit it wouldn't judge because of the fact of the discretionary nature of how it was applied in nichols and nondiscretionary nature of how it's being applied in the oh and i sentencing statute so i would say no judge i would suggest to you judge that this is the bridge which we should not cross with on counsel and we're really not tweaking nichols very much what we're really saying is you know  prior violations are different i agree with all of the united states supreme court judges in and we're going to use them for everything that they can be used for foreign peach make for enhancement of a penalty maybe even enhancement of your charge to a felony but will we go so far as to say that that person confronted with the waiver of jail time or maybe as i had suggested the court this is an interesting proposition especially in these states indigent defendants where the state is not seeking jail but there's another major major class of individuals involved here and those are people working families that can afford a lawyer if you fight file and an asset of affidavit in liabilities in before the court and you're working there's no there's no legal grounds for the court to appoint a public defender for you and if they don't you don't have a lawyer so there is work i would submit it's somewhat of a donut hole in the legal system so there's a lot of people that are that will be in the future and have been in the past affected by this particular issue i also ask would be judge there is a quantum of reliability so says thomas mentioned that that person may have pled guilty but there is a there is a quantum let's say of reliability in an uncountable prior but how great is that is it to the extreme level where we're going to numerically add it to an indictment and to say that we're going to include this on counsel to require a defendant to go to the department of corrections my argument before this court is that yes judge it could be considered in fact i i think i actually argued before judge to me that he was certainly within his right to consider the bureau county matter and the and the third time dui and sentenced him to department corrections but it's the discretion judge  think i would submit to this court needs to be applied to be in conformity with the united states supreme court's interpretation of it justice powell talked about it in in his opinion in scott and he talks about i'm sorry and i wonder if he was predicting that we may be here some day he quotes moreover the drawing of a line and he's not he does not like the line of incarceration being invo invoking the right to an attorney but he says moreover the drawing of a line based on whether there is imprisonment even for overnight can have the practical effect of precluding provision of counsel in other types of cases in which conviction can have more serious consequences he ends his opinion by saying he agrees with the majority but he does so however with the hope that in due time the majority will recognize a more flexible rule is consistent or i would submit that this court might say as i really do believe that judge kinney really did the job of every good trial trial judge in the state when he decided this case defendant brought forth an issue regarding one of the priors which he was inclined and entitle to consider the court considered the case law considered the united states supreme court law in the record replete he nichols was well reviewed and upon reviewing it said you know i'm not going to consider this fire i'm not going to consider it but i am going to i'm not being considered for purposes of mandatory imprisonment but i am going to consider it for purposes of sentencing this to fund it which is perfectly in line with nichols but doesn't expand the use of an prior beyond what i would submit justice souter justice powell and justice rehnquist were referring to in our singer and all of the other cases as we go forward i i i would submit and i don't mean to repeat myself but there is something very counsel's cases is this and this is maybe what the court must decide is this the difference the difference is taking to discretion away from the court and requiring an individual numerically to go to the department of corrections just this mention or ethic question of are there any other statutes like this one and i don't believe there are are dui statute is pretty unique there are a lot of statutes like theft and other that that enhance to felonies but i don't believe there's one that says if you commit a number on those very few if you commit a number of these offenses you're done you're going to go to the part of the corrections or you're going to be a car straight for a period of time i know driving license revoked is also in the same ballpark as this one is however i would submit to the court that that's what we're just saying that would probably apply to that case also but the bottom line of my reasoning is and i would also ask if i could mention to the court there's been a couple cases after nichols illinois cases that have addressed the same issue one was last housekeeping we mentioned it in a brief and what is interesting about race house he hears nichols out there and it's so obviously our look at the holding and last house who if you would it talks about unless the defendant affirmatively raises question of representation by counsel the state has no burden of proving the existence of a lawyer on the prior offenses so laskoski doesn't come out and say you know we can consider these things and it's an interesting opinion because you kind of feel it's going to go that way and then at the very end he says well the real issue is how must the issue be raised not whether the issue could be raised so laskoski at least the court in the fourth district felt that there was a quantum of review that was allowed there because the fed it did not collaterally attack that particular sentence he wasn't allowed to relief and again they cite custis forces us which says this sixth amendment is the only way that we can attack prior's people first i think it's pronounced him alien it's a second district case and again this is a two thousand and three case after nettles interesting findley as you know whether finley was overruled or not i don't know finley was a case and i actually stumbled upon a dense and consequently stumble upon this argument when i was looking researching motions to dismiss because that's what finley really involved in that particular case the lawyer came in and said judge you can't consider this counsel this on counsel prior to increase it so i'm going to do a motion to dismiss the indictment and the third district said that's not the proper way to proceed that the one fourteen grounds don't well it's balls judge it is your honor and shouldn't it be if i could ask you that your honor because we are at if we are going back to the reasoning and scott and our singer the line is drawn at incarceration that's the that's the theme all the way through our singer scott goes all the way back to getting and the line is drawn and incarceration isn't that the line that we're at your honor we are at the line of incarceration utilizing the fourth time requires the court to sentence the individual to the department of correction so i think that even if we apply the of reasoning of scott the reason going back to arson or going back to get again we're there this is the use of an prior it's almost it's uncanny how justice souter almost predicted that this automatic upgrade was coming down the pike at some time in the future and justice powell in his dissent and baltazar which is were nichols references nichols says you know we're used to impeach a defendant's testimony or that judges should not consider such convictions in later sentencing determinations following today's pronouncement there is no way to predict the outcome of any such claim he also talks about in his sentence both the south providing counsel for all defendants charged with in the handsome misdemeanors will exacerbate the raise that plague many state mr mena courts talks about how much it would cost us and how much work it would take to do it in these particular cases but if we look at the case right now and how it's being utilized right now i believe that and i hope this court will find that we are at the right drawn and scott we are at the line drawing our singer strictly to mandatorily require the defendant to be incarcerated in the department of corrections that is the that is the point of law we are putting forth and absent any questions from the court i sit down and thank you for listening and  that prior uncounted misdemeanor conviction did not violate the sixth amendment because no imposed as to counsel's argument that the judge has discretion to overlook the prior convictions or to count only those he chooses that's simply not the case he cites new authority for that proposition aside from general sort of sentencing authority in fact the general assembly has stated its intent that we be counted to specify certain penalties for certain offenses and it's important the number of offenses the general assembly has decided that a  bowl violation if they have time the sentencing discretion of the judge kicks in and the judge has the ability to consider the facts and circumstance of this case and any other relevant to in choosing a term of imprisonment within that three to seven year range defendant here is really offered no principal basis on which to adopt a this is line drawing for the mandatory versus non mandatory imprisonment felony misdemeanor the line seems to shift  offered no principled basis when nichols is in chile covers the entire field by stating that a prior counsel misdemeanor valid under scott first is illinois can be used to enhance and again i disagree with contemplated enhancement not only in the context of federal sentencing guidelines but also in the context of state law so i think in terms of page and this sort of situation in fact if we adopt a defendant's r that has one very negative consequence and that a defendant could avoid a more subs could have boarded a more stringent or harsher penalty for a later violation but simply declining counsel in the  and to sentence r kenny chief judge of the twelfth to usual circuit is taken under advisement as agenda number three mr marshall the supreme court stands adjourned until tomorrow morning nine thirty am march fourteenth two thousand and twelve