and mr vaile race two issues in his brief in this appeal one seems to have been disposed of and concerned it was the nd issue and it concerned the imposition of an extended term on the lesser offense and so today unless the court has questions on that issue i will address what i consider to be the main issue of disappear which is sentence and that resulted in the fourteen years sense of forty four years which was fourteen years of the face maximum of six to thirty for the classics offense now that the the brutal and heinous elements should have been included in the charge and not add it to the charge through notice and the reason for that is that under present a the brutal and janus packs are elements of the offense and section  five by its very terms does not deal with elements only with facts so the use of section sixty five to introduce these elements into the charge was improper rule that that practice was unconstitutional so because of their flaw the we've been using se elements should be included in the charge in order to prove that charge to them authorize an enhanced sentence now the other part of that argument is that elements actually create an enhanced only classification offense and that is clear from the language of questions and it would try to answer them otherwise that is that really from seeking in this case everyone quick question how how could the state once this indictment has returned without the added language the friend be required language and the state decides that they want to seek an extended term sentence after the indictments been entered what's your solution how how would preserved and you're arguing plain error where is the prejudice here with an element of household family or household member not being included to the jury and it was argued out for a st time on appeal that that was error the scream court said well ringback it doesn't matter whether it was of elements or not but the senate has failed to show how he was prejudiced by the by the alleged  r since the element was apparent the court affirmed the conviction in this case the defendant was charged with d battery of the child range the jury was instructed as to the brutal and heinous nature the jury came back with that determination there is no argument that defendant was unable to present his or preserve his defense or prepare a defense in this case therefore under davis defense argument fails just absolutely fails the a beazley is of course upright that they that reason for the increased sentence was a prior conviction present convictions of course are in a separate section c or has c five covers i think their actual appropriate remedy would be really bad for new sentencing hearing because you know the judge gave a forty four year sentence and based the new sentencing range appropriate excuse me but thank you yes your honor briefly thank you i say plan it out in the defendant's reply brief defendant does not he does not quarrel with with davis it's clear that  generally speaking and indictment can be amended the way that it was amended in this case and it's not only davis that has filed that but the united states supreme court found so in the united states versus cotton in our supreme court also found in people versus the roe but that's not the end of the the and handsome and this case was not appropriate so our argument has basically boil down to whether d this and has meant this amendment that this edition of the brutal his tax was authorized under section one hundred and eleven dash three and our argument is that that section which pertains to the form of the charts that not authorize five which is the append the section which allows notice of the present facts is itself a lot section because it permits what the president prohibits it permits facts to be comes and and the reasoning applied by peacefully and and so are remedy that the remedy where every question has the remedy that was granted and basically which is that the excess sentence t sense beyond the based range just be vacated so what would happen if such an see is not deemed to be applied to the situation presented by this case is that repeat offender s would be entitled to notice of the pair convention convictions enhance there in the charge that's our argument to the court has any questions i can be happy to try to answer them otherwise that again we're just asking for a  blocked off the access