retreated from its hardline stance that all sentencing claims are moot because of commutation if you look at the language and people being mamma and that case the supreme court found that the defending could challenge the eligibility factor and that case because he was raising in a hand huge challenge and the rationale for that was because an individual's constitutional right to due process of law is superior to the governor's power to commute or sentence so with with that in mind the court held that due process does prevail and allowed for the sentencing claim to go forward  versus and yes go and post conviction petition and on appeal he can raise a constitutional violation so there isn't a significant difference between a dire employed and that when a defendant is eligible for a term of years sentencing claims are not moot because the defendants due process rights supersede those  westerberg like would be for this court to issue an opinion acknowledging these prior holdings in the illinois supreme court which we understand you as the just sat monitor recognizes there's not a lot of reasons to distinguish between the constitutional right to raise and upon the challenge and the constitutional right to effective assistance of counsel so we're asking that this court acknowledge the prior holdings miller in the other cases cited in the state's brief but after that when i supreme court reconsider its position i move this based on the reasoning in montana in the majority we understand that this court doesn't have the authority to overrule the illinois supreme court or just regard their previous holdings but we would ask that you look at the definition of  the charges and then proceeded to sentencing there after defense counsel told westerlies mother that he could not do any mitigation it wouldn't make a difference lestrade pled guilty and if she wanted for that any medication she was going to have to get that was a point of well conviction capital trial counsel did nothing other than speak with westray and his mother and they they testified there was a friend of hers present in court that day who asked if she could testify though she really couldn't testify to the what she was on the witness list however that that appears to be a list that was provided by westray and his mother because there were no subpoenas issued or notes from  westray as a high school student and understood the dynamics of his household the complications the level of just functionality and he would have presented it from a different viewpoint from that of a professional he could have testified as an expert so what the jury heard was the testimony from westray himself and his mother both of whom obviously were desperate to avoid the death penalty in that case what they're at there actually was additional information there there would have been additional testimony about abuse however it would have been in terms of a professional viewpoint and how that affected him developmentally how that played out at school how it affected his decisions and why he made certain decisions that would have given the jury a much broader view of westray his background and why he did certain things and that would have been additional testimony there also would have been evidence about his relationship with his brother which was not something that defense counsel brought out and the other witnesses and there was also a school friend who mr west there was no longer in touch with but he had also witness imbues so that would have provided additional testimony for the jury to weigh in mitigation  testimony after that there was about a twelve year span between approximately between the time of this counseling and the time of the offense but again those were that would have been testimony towards a very key developmental point in  west phrase upbringing and it would have been very helpful for the jury to have that when it was an immigration raid  defendant said that sentence was commuted to natural life and the defendant argued on direct appeal as your honor noted that the state did not prove a statutory aggravating factor at the eligibility phase of the capital sentencing hearing beyond a reasonable doubt that's one difference between back ace in this because this case involves a claim of ineffective assistance of counsel at the aggravation mitigation phase of the sentencing hearing and in the modern case the supreme court held that the defendant's claim was not moot because it involved a challenge to the sufficiency of the evidence on that stacked step to jury aggravating factor which was the court said akin to tantamount to the functional equivalent of an element of the offense rather than as a sentencing issue and that the court's decision was based on the apprentice line of cases because the statutory aggravating factor had to prove i had to be proved beyond a reasonable doubt in order to increase the sentencing range in order to make the defendant eligible for the death penalty and that's not what happened here and i'd also note that post that matter which is a two thousand and five case reviewing courts in the state of illinois continue to hold the claims of ineffective assistance of counsel at the aggravation mitigation phase of capital sentencing hearings are rendered moot by commutation as in people vs ochs a third district case from two thousand obviously that's identical to the claim asserted here the defendant argues in the reply brief at page ten that it's under mada that the court that this court should reject the state's argument that the governor's commutation power is not subject to judicial review but moderate itself states at page five forty one of that opinion that the governor's commutation power is not subject to control by the courts or the legislature quote but can be controlled only by the governor's conscience and sense of public duty and also note that my page five forty eight states that the governor's commutation does not render all challenges by a defendant moot rather only issues challenging the sentence  it's because the state courts lack power under the williamson miller cetera to review the governor's sentence and it's the only constitution that gives the governor this nearly unreviewable power the defendant point that that he makes today that a that a term of years would have been imposed had the death sentence not that imposed was true in all of those cases as well and williams and miller and so forth and yet the owners important in those cases incompatible state law and that independence federal due process rights must prevail well i'd note that in that line of illinois supreme court cases the defendants in those cases also sought to vindicate a federally guaranteed right to effective assistance might as well but the appellate court rejected that speculation and help the sentencing issues were mooted under state principles of separation of powers which the court stated work quote beyond the purview of the united states constitution and one of the point is that that court in harris did acknowledge the the conflict the tension between the defendants interest and then the caving in his federal credibly guaranteed rights and the state's separations of powers principles but resolve that conflict by noting that the only supreme court had issued this long line of cases williams and miller and so forth for finding that these claims were moo one other point finally is that the defendant argues that this court should consider the issue in the interests of judicial economy but well first the principles of separation of powers sentencing claims were mooted by the commutation of the defendant's sentence went on to decide other issues in the interest of judicial economy and i know that because it shows that a reviewing court but that is even one that is sensitive swears that he told the the defense counsel that this list of witnesses would tell the defendant or defense counsel that they had seen the defendant's stepfather physically abusing him and this was a list of the  and so define counsel would have known just from that information that he need not have interviewed those witnesses and we have to assume at the second stage post conviction proceeding that he did not counsel doesn't have a constitutional obligation to interview every witness named by a defendant where he knows it to be a necessary second with regard to the school records again the evidence shows that that that counsel could reasonably conclude that that evidence would have been cumulative unnecessary and that it would have been uncontested on the defendant and his mother both testified at the defense are at the in mitigation that defendant was a middling student kept his grades up high enough so that he could play sports and that he excelled in testimony that the defense would have had no from that evidence from that knowledge of that evidence the defense counsel would have had no reason to investigate his record further and i finally note that the knox report the report of the o behavior problems can be overbearing and aggressive place rough has difficulty controlling his temper has had numerous fights wants to be the center of attention has difficulty losing sports games has an intense desire to be like  no defense attorney would have wanted evidence that a school counselor pigeonholed this fourteen year the fourteen year old defendant as a few potential future rule breaker would expected to have difficulty following the rules and controlling his temper in the next school year this report was far more aggravating the mitigating that posed the question of defendant's inability to make a substantial showing of prejudice at the s court rather than have to go to federal court and raise the claim there which he could do get relief come back we would ask that this court simply ask that the only supreme court reconsider its position on mootness and i do want to bring attention to another distinguishing fact miller which you had asked about and the state mentioned that in that he's life was a minimum sentence that was not a situation where the defendant was eligible for a term of years mr westray does not have a mandatory life sentence here it's a situation where he could be sentenced to something sixty years with respect to the merits of the claim and the performance aspect strickland is clear defense counsel cannot make any decisions that are strategic in told he talks to witnesses and learns the facts and decide that that might want to going to admit into evidence and here there was absolutely no investigation so there was nothing strategic and we disagree about the look for my randy knox there was a lot of positive evidence contained in there about his good attitude during counseling his desire to improve his behavior to make his appearance that he improved his ability to follow rules following counseling