good morning your honour's my name is barbara passion i'm with the office of the state appellate defender and i represent romesh so i mean anything your honor we're here this morning because my client is asking your honour's to find that in light of both section one twenty two dash two point one of the post conviction hearing act and and the requirements of people versus shells from judge foreman three characterization and summary dismissal were not reasonable my client filed a pro se motion to withdraw his plea and reconsider his sentence and april thirteenth two thousand and six this was untimely on its face because he pled guilty and was sentenced in two thousand ruling ninety days from that date ninety days from their take would have been a total twenty fifth of two thousand six hour that tape went by with no ruling by november second two thousand  warming a thing was brought up again from the department of corrections so that george foreman could rectify his errors in his first term admonishments and he also added a translator he expressed concern at that date that there should have been a translator however that point the ninety days had already expired and what judge foreman should have done was appoint counsel and set the ma petition and steps to the trial court summary actions when it deals with a pro se pleading but those steps are not so on or is that they can't be accomplished within the ninety day limit the fact in this case is that in every way except the ninety days this pleading was treated as a post conviction petition the judge's remarks over time indicated that he was trying to he was aware of shell strongmen he was trying to comply with it but he didn't comply with it w however that's not what happened here mr swaminathan at all points agreed to the re characterization and never ultimately never did change his position and or ask to do so but if the defendant could not be admonished until after the ninety day period had expired for the legitimate reasons such as an availability of an interim interpreter well your honor i think that once the ninety day rule goes by then as has happened in many cases where the ninety day rule goes by for other well your honor is in shells from we're considering a different issue so i think if you stick with that language in a situation like this it defeats the purpose of having a court informed the defendant that it is going to read characterize the motion as a post conviction petition and you're right he did say he would accept it but there wasn't an interpreter present right right my client's my client was always in cooperation with the recorders ation process and never expressed to decide a decision to amend it was only the judge's failure to accomplish this process in a timely fashion that made him that made the process itself too long and then you have a then you start to wonder whether some reaction can take place at all there might be some cases where a judge is wondering to himself and wants an opportunity to decide whether or not we care to say sion should take place is this admonishments given on july thirteenth but there was an indication of rekers a very great and my question is in july twenty seventh there is an interpreter present the defendant was already the crux of the matter for you the fact that it managements were started on the twenty seventh i know the crux of the matter for me on the thirteenth the judge said he was going to be characterized the petition however so i mean if it was not in court that day he was brought into court on the twenty seventh and undersells from the whole idea behind shell strum is to let the client know what's happening what the effects of that we characterization are going to be on his future litigation whether he can file another petition or not so the twenty seventh is the day where the judge spoke directly to the client about re characterization and then i think now still if he needs an interpreter how can the court be sure he understands when he sang to the court spoke to him for a long time without the question of and the need for an interpreter coming up at all and it was that at the november hearings the point when the defendant said i have a little problem here really settling a little trouble here understand here right but he points to many hearings where there was a translator at his plea hearing whom he there isn't a lot of indication how much he used the translator also the translator who was there for the sion my client's native language you know what we're talking about is whether the judge made a correct decision and ordered an interpreter before proceeding further with can anybody really argue that the judge did anything wrong when you did that record you're reading the record you concluded that he didn't need an interpreter very much right i think personally i don't think he did need an interpreter very much but but that's not the evidence the judge was concerned about that and rightly so when the judge saw that ninety days he lapsley said opes we maybe we need an interpreter you know at that point that it probably wouldn't be possible to get an interpreter in a couple days or whatever time there was so appoint counsel and send it on to the next stage as has happened many times when courts have missed the ninety day period for other reasons they say up to ninety days has gone by we're going to move it on to stage two the time w at used to be thirty days and in practice the courts made it known that that wasn't working very well the trial courts it was too much of a burden on their on their workloads so it's tough for me to get over the  shell's term stands for the proposition that this pleading cannot be considered a post conviction petition unless the proper admonishments are given and in this case i don't think there's any dispute is there that until november second is it wasn't informed how the act impacts success of those conviction petitions he wasn't told until november second that he could amend his petition if he wants so so shells from seems to stand for the petition because he was not properly admonishes that not really as that's correct your honor bear in mind please that this is kind of an unusual situation he is but i for i could ask a follow up questions i hope more pointed as to this is to this defendant if in fact he had not been admonished relative correctly relative to whether to do to the other case the defendant may have never known that he was and he was in the position where he had the obligation of presenting cause and prejudice first to to have a successive petition granted and and he may have if he hadn't been admonished be in that position because the court compelled him to be in that position by rick eric to rise in the petition as a p c i do believe that he had he brought a new petition had he an amended petition and not treated as a successor petition and granted that they could do that but i'd also say just as easily motion denied you haven't shown cause and prejudice causing prejudice is and well my argument is that they shouldn't it in this in it in mr swamy nathans case they wouldn't have gotten to the cousin prejudice test because we're still at the place where some of the root we need a summary really we need someone to say whether it's fair listen without merit now there is nevertheless peril of having every missed offended required to produce cause and padded prejudice to move forward as there's peril yes if you disagree with my argument yes and i think there might be something out there although the opportunity has never been given for development of and i say it's a potential issue because i would not be the attorney who would be appointed to his post conviction protest proceeding so i wouldn't be involved in that decision but i can see that there is a potential for an issue in swimming with its case thank you good morning rogers may please the court my name is drew meyer of the illinois attorney general's office and i represent the people of illinois your honors the summary dismissal order in this case was timely because it was entered with in the ninety days provided the first time that the court fully admonished petitioner according to shelves from petitioners argument continues to rest on the mis application of the ninety day rule through the process of  repairing itself the ninety day rule only goes into effect once a post conviction petition exists in the word of the statute once it is filed and docketed in of course it couldn't be filed in docket it until it exists and if those conditions simply what i think you said and please correct me if i'm wrong are you are you saying is there is it would be an abuse of discretion if a court chooses not to characterize or yes ok no i mean the section one twenty two very simple solution to the problem of a court taking what he believes to be too long too we characterize a petition and i think most importantly is that petitioners application of the ninety day rule to motion i will recur to rise or i will continue this or september eighth being the date that it was continued for the interpreter this fact is not included in the court opinion and my question is this a correct statement of the record in this case your honor it is a correct statement of the record the trial court did state on july twenty seventh that the ninety day period would begin that day on july twenty seventh however that statement had no legal effect on the shelf from in the court recognized as much when it fell the big that the defendant was present correct or on the defendant was present and he understood the import of this statement is that clear from the record you know what that is not clear from the record especially because there was not an interpreter present and you know there are the record is replete with evidence of  trouble understanding english at that july twenty seventh hearing that you mentioned he said he understood a little bit of english the court did express its concern that you know petitioner might not be able to understand what was going on without an interpreter correct and i would point out your honor that on june twenty sixth the court had stated that the ninety day period for initial review would expire on july thirteenth no petitioner does not put any weight on that statement that's another statement by the court regarding the petitions in most cases would be lost and the petitioner could simply file another titian regardless of any work or energy judicial state or otherwise that had gone into processing the initial petition so that's absolutely right your hon agrees the court has no obligation three characterize a petition at all much less to do so within a particular period of time and again petitioners application of a one twenty two dash two point one is ninety day rule to the process and it simply would complicate and unnecessarily confuse the loss around in the characterization if there is you know one set of criteria three characterization for one purpose and another set of criteria for retired position for another purpose in this court is already honor but the there are remedies very simple before the time for petitioner to file a post conviction petition expires but the petitioner can simply file a post conviction labeled as such which would automatically  as general fairness petitioner just stated that petitioner did not have a chance to farrell a fair chance to develop his claims but that's that's the actually the opposite of what happened here the judge was extremely conscientious of protecting the has no legal basis for his claim he has no equitable one either the the court at every turn here attempted to protect petitioners interest by first reach characterizing a hopeless motion withdraw as onition was insufficient so the petitioner had every opportunity that shells from provides and that the post conviction act provides to develop his claim and briefly your honour's it is appropriate for the court in the court should consider the legislative intent behind the statutes applies in this case both section one twenty two dash one aft and section one twenty two deaths two point one  where if in a system where there's again one set of criteria for re characterization for one purpose another set of criteria for another purpose and one in which a court must make a decision as to whether to summarily dismiss a post conviction petition without first providing the shells from admissions obviously as as well as we discussed earlier the petitioner would be unhindered by section one twenty two dash one restriction on successive petitions in such a case and any energies judicial state or otherwise that were invested in processing that original petition would be lost which is yet another reason why it makes good sense decision below thank you very much your honour's nine and a half months went by thirteen hearings to remains from the department of corrections and nothing of legal significance happened in this case that is not judicial some efficiency it's not streamlining it's not a good management of the court's docket i disagree strongly with a pass proposition the state has argued that a simple remedy would a pro se petitioner can simply file a proper post conviction petition i would say that if he had known then the pro se petition or who doesn't know anything about the law he probably would have done so and the fact that he filed a a motion to withdraw his plea in reconsider sentence two years late shoshu that he did not know what procedures would be proper and what document would be proper for him to file  one final thing about the language barrier that there was a point at which church foreman said by the way you're speaking with me fluently and i can't remember if it was on the thirteenth of the twenty seventh i don't remember what hearing it was at but they were talking about the language barrier barrier and judge foreman did say well i think you're you're doing just fine talking to me as we are here your honors we're asking that the appellate court decision be reversed and th