next case in our quality today's agenda number twenty three case number one zero eight eight five five people in the state of illinois versus  of in effect in the slangy raise in direct appeal but that direct public court refused to resolve in favor of that being resolved in the post conviction process and now we argue that if direct appeal claims are going to be moved to another process then counsel got and that they were going to hear his testimony that after that they were had more than sufficient doubt in order to cool to acquit sort other words with trial counsel here did was promised the jurors a perry mason moment they were going to bring in the real court to do that because we think it's the simplest way to do to avoid the cost to starting here but we do you want to clarify we don't we're not saying we're entitled to supervise relief in any way there we're saying we are entitled to counsel under secondary our second argument under the federal constitution but we think that the supervisor really would dispose of this case justly and and cleanly and not in quickly but we don't think we're entitle didn't in an interview him adequately it and realize until after he made these promises to the jury that this he was going to be a valuable witness because he didn't like the way he spoke and his inconsistent story and the case law indicates that not you know not interviewing your main soul witness who's going to allegedly support your defense higher opening statements is it effective so we believe this claim has merit and if we yes that you know this should not be surprised when an unusual procedure like this takes place that the rights to appeal in the appellate review in the right to counsel on appeal be functional in the differently than they would in the normal case  o that's why we think the states focus on the distinction between collateral and the right in this case is misplaced because the appellate court by virtue of adopting this method of review where it sent some claims elsewhere it raced  distinction a conscripted the post conviction poured into this process of review under your rule would adjourn for ruling out post conviction titian at the first stage be required to delve into the record to determine whether but not in this case roger because in this case you had to tell a court saying we know what i'm talking a lot of we're going to make a pronouncement here we're going to say we can't this is not a rule twenty three case we're just aquinas you we're creating precedent and so we're going to we're really instructing trial courts how to deal with these and what they should do when they're faced with i mean how do we know how's the trial judge to know on any post conviction matter merits and that's what defendant here avoids seeking on direct appeal racist place or counsel but in order for him to have received that review he was sent to a different process so until he receives that review his he has not had the full and adequate effective and there's knockers you're not going to have a problem like you have here mourning your honour's counsel my name is michelle grimaldi's stein i am an assistant state's attorney i represent the people of the state of illinois the defendant's entire argument in this case is predicated on a legal fiction of his making the defendant maintains that his direct appeal was improperly bifurcated when the appellate court declined to consider issues which it deemed better suited to post conviction review and based on this fiction the defendant contends that his post conviction proceedings were a continuation of his direct appeal that he was entitled to the appointment of counsel for those proceedings and that he can now allege on the appeal from the dismissal of his admittedly meritless post conviction petition at every post conviction that's the pro se vote against burton this case is no different simply because the defendant attempted to raise something on direct appeal that the appellate court now could the appellate court have decided this case was procedur ally defaulted because you mr defendant had independent counsel during a post trial evidentiary hearing on this issue of ineffective assistance of counsel and this attorney didn't ask those questions when did you find out about dennis compton how did you find out about him what efforts did you make to interview him now that it turning your honor filed a six fifty one c certificate certainly not a normal certificate for a cross truck proceeding but this attorney knew that his conduct might be subject to some future scrutiny and that's where to pick it said i talk to this defendant i ascertained what he wanted to raise i investigated the case and these are the issues that i could present so i'm saying he had a full evidentiary hearing on the issue in his crank will post trial hearing and he chose not to proceed on the issues that he later improperly raised in a petition f rehearing because these issues the issue that he's now claiming was never decided is the issue of whether or not his attorney was unconstitutionally unprepared for trial because he didn't interview the defendant as counsel just told you he didn't interview the witness soon enough in advance it's far enough in advance of trial to make an adequate determination whether he was going to be a reliable witness that issue your honor wasn't even presented a direct appeal until the petition for rehearing and that is not an appropriate way to raise an issue so one another one of the fictions that this defendant is raising is that i properly raised an issue on appeal and the court didn't court was trying to give the defendant the benefit of the doubt that's why if you listen to justice quinn's remarks in oral argument in this case follow in that tape that counsel of made amended the record with he says what we were trying to do is to give the defendant the opportunity to expand the record to maybe be able to sustain a claim that if we wolde on that right then had to be world against  so we're giving him the benefit benefit of the doubt he has the briefs from his attorney he has the trial transcript from the post trial hearing he has the court two opinions he has the petition for anywhere here what we're saying is there's simply no evidence your honor that the defendant wanted to pursue these issues in post conviction this is this entire issue is a creation of  appeal what happened on direct appeal on an appeal from a post conviction petition an entirely different perceiving that was it minutely meritless that's the crux of this case and the fact that he asks this court these provide an abundance of reasons for this court never to reach these issues and not to remand this case but the consequences of not reaching his underlying kates his underlying issue the consequences of not deciding whether halbert reflects a fundamental change in the u s supreme court's jurisprudence on the right to counsel cases is going to have a widespread impact because i can guarantee you if you leave open the possibility that every single time an appellate court doesn't reach an issue that it's going to end defer study issue to post conviction review you're going to have appellate court cases that routinely appellate attorneys are going to put in issues that you know the kid the court can't decide so that that that men dates the appointment of counsel on p c it's going to have incredibly widespread effect if this court doesn't reach that issue and if it doesn't decide that the underlying premise in the defendant's argument is wrong that halbert does not alter the supreme court's analysis of due process requirements from any time from the nature of the the proceeding and the source of the right to an issue based proceeding because what the defendant is saying is any time someone presents an issue for a first tier consideration to an error correction court the defendant is entitled under how hurt to the appointment of counsel for the presentation of that issue and that's going to mean that under the post conviction hearing act in illinois because the post conviction hearing act requires that it be issues that have not been considered before and never could have been considered before so it is the first opportunity in illinois for litigants to present these constitutional issues that are based on matters for horse the record that court sits as america election court and it's going to mean if you would dr what he says what the defendant says in this argument that every single post conviction petitioner is going to be entitled to the appointment of counsel on first stage post conviction proceedings but if you examine the historical analysis and the evolution of right to counsel cases from the u s supreme court and if you  cases that mike might opposing counsel has totally ignored the ones that have followed halbert both in the united states supreme court and in every single jurisdiction where this issue has come up and that includes new hampshire massachusetts mississippi the eastern district of michigan the sixth circuit court of appeals in the tenth circuit court of appeals every single one of those courts has said halbert did not change the analysis the analysis is still is it direct review first review to review or is it collateral review if it's collateral review there is a more limited liberty interest that what the due process concerns are not the same as controlled by pretrial cases the constitution does not mandate the appointment of counsel the states are free to determine what procedures comport with due process so long as they ensure meaningful access to the courts and they do not provide for any barriers to review now if you that starts with gideon douglas ross versus moffitt pennsylvania versus finley all of those cases look to the nature of the right or the nature of the proceeding and the source of the right and that's what this court did in porter more than two on two decades ago it looked at the nature of post conviction proceedings or civil in nature they're not a continuation of the trial they're usually instituted after the defendant has had a direct appeal the the states have no obligation to provide this and i determined this court determined in puerto that given the nature of post conviction proceedings the limited due process rights of the defendants there under the illinois in granting this opportunity for the defendants to prove their convictions are unreliable based on matters of course the record that the procedures that we have provided this low threshold standard of pleading which this court has spent great  and the defendant's due process protections are protected if this court examines the u s supreme court opinion in born which came down in june of two thousand and nine it w see that the fundamental premise of the defendant's argument that there is no longer this dichotomy between collateral proceedings and trial proceedings is absolutely wrong because i was born talked about the defendant who has been convicted and whose conviction has been affirmed his liberty interests are diminished they are not the same as the liberty interests of a free man and that things like brady and a prosecutor's responsibility to provide pretrial information to the defendant doesn't apply to providing this information to post  i was born demonstrates that that the distinction that the supreme court is still relying on this distinction between the nature of the proceedings to determine the due process rights and once this court examines as foreign and sees that the distinction still exists that we are dealing with post conviction proceedings we're dealing with a defendant who's been lawful he convicted his limited liberty interest has been protected by the proceedings that we have in place that it will see that the defendant is wrong that this court will agree with every other court in the nation to decide the issue that how hurt does not require the appointment of counsel and that this court should not over you rule years of a stablished precedent based on an expanded concept of the right to counsel which not even the u s supreme court has accepted for all these reasons the people respectfully request this court to reject the defendant claims to be reserved for claims that work reason direct appeal obviously these were how is he supposed how's this man supposed to resolve how to proceed here he already raise these claims if those conviction petitions raise for claims that can't be raised why should he assume that he has to raise them again i guess that's the question here why she has to he has to raise them again constitution doesn't require it like something you indicated in your during your remarks on direct you