of the defendant sentence sounds like i meant to say before you started that i wanted to thank you and miss brooks for appearing over here with you i guess today for argument it's a little out of the ordinary but we really appreciate your taking the time to come to the quite all right so basically what with this case comes to the court the defendant was charged initially with classic felony and that was aggravated arson based on some facts i'll go into in a little bit so pled open to that charge and he received thirteen years in the only department of corrections so basically the facts of this case is essentially that the defendant came home one day to discover that his laptop was missing he shared the apartment his apartment with a roommate he asked the roommate about the laptop being missing he said it you know might be declared green so the two of them went laptop the interchange basically ended there that my client went back to his apartment he later came back to the house in front of where later green's brother was standing and they had that conversation  and he attempted to night the house he was unsuccessful he actually came back later and attempted to ignite it again the house sort of partially ignited there's photographs that are in the exhibits basically the siding kind of got burned and that the sort of hook in this case is that it was actually not larry green's house or his brother's house it was just the house that his brother was standing in front of so it was actually an elderly woman's house and i believe that she had a  disabled adult that was living in the house too so they later arrested him they pulled him over and the smell of gasoline was a mini from the vehicle and they basically for mr smith's sentence to be reduced in light of the corps more or less failing to ignore statutory and other factors in mitigation pretty much to the exclusion of the seriousness of the offense and this is one of those cases where the facts of the case and this is why i brought him up are sort past the facts of the offense and it's what we're maintaining here that the thirteen year sentence which is near the upper end of the four to fifteen range was excessive in light of well your honor the we didn't request a specific sentence in our prayer for relief it could be probation of all it's presumptive sentence in illinois and we would ask it to be anything lower than thirteen down to probation now if the court didn't think that then this that this was a type of probational chance then here's where we see the problem your problem with this argument is as you just suggested anything less than thirty all will be on the probation there's a great deal of discretion that the trial judge has in picking a number then you have to show that trial court abused her discretion meaning that no reasonable person could have taken the view and not do it when you say that it goes away from probation up to thirteen years i think it should be clarified that the sentencing range isn't i mean it is probation to fifteen years in a way it's not though because if the court imposes a term of imprisonment if the court determines that the term imprisonment in in contrast to probation is appropriate for whatever reason they need to remove him from the community then the minimum four years so the court can't do one two or three it has to be four so really there's two sort of choices either four to fifteen or probation and so if if the trial court's reasoning was basically and i think that the trial court to some respected some extent did say you know this is the kind of person that that shouldn't be you know in society or whatever then i think that the imposing a sentence of four years on the lower end of the spectrum would serve that that same goal and it would be reflective of the factors in mitigation that that the defendant presented that the court basically north and on that point the court goes through it begins it's its opinion it's sensing opinion saying you know i've looked at the pre sen report the documents and evidence submitted at the sensing hearing factors in aggravation a geisha in the character history and rebuild of potential of mr smith his statement an allocution and the arguments and recommendation of counsel so the core at the onset of his opinion is saying that he has acknowledged basically all of the full range of information that he's allowed to acknowledge but it would be the defendant's position that was more or less sort of covering his bases sort of lip service because the court does mention these things during its opinion but it basically gives no weight to any of the mitigating factors and in fact that the thing that sticks out to me about this particular sentencing hearing is the court will say ok yeah there was this this mitigating factor but look at the seriousness of the crime there is this mitigating factor but look at the seriousness of the crime now the court the trial courts allowed to to look at the seriousness of the offense and as we have conceded in our brief it was unquestionably serious thing that that was the specific language that i use there's there's no doubt that there was a possibility for a true tragedy to happen here but i think that the the facts  while they they tend to sort of tip towards aggravation i think that they offer some mitigation and well as well specifically the fact that in itself it's a legal factor that the court has to consider fence young age i was thinking about the actual facts of this case and this young man tried to set a house on fire because he thought that somebody stole his laptop now those two acts are are so out of proportion to one another that it makes you think geez there's you know there's something not right here and if you look at if you look at the the report from the psychologist that was submitted at the sensing hearing that the court indicated that it can sit it talks about a number of different cognitive functioning issues that the defendant had that could very well explain this in addition to the defendant's young age this is not something that a full grown adult with a fully developed brain is going to do when somebody steals his laptop most of us are going to call the police but when you have the cognitive functioning problems that are documented in the report then that that goes a long way in explaining a lot of this and that this is one of i think that this is one of the sort of most unfair parts of the sentencing hearing is that the judge basically dismisses the psychologist report out of hand he's basically saying well you know the onset of the report is the defendant giving his version of the facts to the psychologist that doesn't match match up with well with the statement of facts that that was agreed upon by the parties well i think that you know this court is very experienced they know that number one defendants typically do not accurately report the the factual basis of their crimes either before they're convicted or afterwards and in fact there's always sort of a tendency to minimize their role and that's exactly what he was doing but what the court did was basically throw out the baby with the bathwater and said well you know these this this report contains a number of an act chief of which is the defendant's version of the facts that was given to the psychologist so therefore i'm not going to rely on his findings because basically you know i don't know how much credence to give them to the psychologists awareness there is a section in the report it's it's appendix number eleven that talks about basically the methodology that's used  how the psychologist dr at the conclusions that you did so it says that the exam is structured to interview that address the psychological history treatment medication drug and alcohol usage work history orientation memory learning ability con concentration abstract thinking judgment lifestyle clinical observations and then it goes through a number of these sort of standardized tests that were that were implemented the aware of the extent of his juvenile history there is in the evaluation summary in recommendations i'm specifically referring to page eight twelve where he talks about the defendant being placed on probation do due to fighting he also spent to one week stays in the champaign county juvenile detention center he completed probation when he was eighteen years old so the referen the report does reference his juvenile history to the extent that he was aware of every you know conviction or disposition i guess i don't know so i i think that the trial court basically dismisses the report of the psychologist out of hand because their report is based on self reporting and creation and as we all know self reported information isn't the most reliable information but i would submit that with a psychological evaluation there's very little way of gathering that information other than self reporting and what's important here is not necessarily what was and wasn't reported but also take into consideration the psychologists his own his own tools that he uses the objective test that he uses his observations the conclusions that he comes to  not they're not over the top mitigation type conclusions where you know these are these are not big lucian's that would clearly come from somebody that is tipped off what they should write or what kind of things would be helpful  he's saying things that are not particularly flattering about this defendant and this is a report that's supposed to help him so i i really think that that the trial court dismissed the report and entirely and it did that in error because i think that there was a lot of very useful information and just turn as long as you bring up his his juvenile history  he did have he did have a juvenile history i believe that he had possession it looked like a tear gas gun was the first charge then residential burglary and then a criminal trespass  i guess you might be able to argue that the possession of the tear gas gun was sort of violent in that it could have been but other than that you know he doesn't have a history of violent  fenses and even though this particular offense could have turned out tragically there's something that is just not well thought  out that somebody that had a particularly violent intentions would do so i think that the state could argue that the trial court correctly  interpreted the defendant's criminal history in that he was only twenty years old when he committed this fence and for the last few years prior to this at least before he was eighteen  he had you know had these delinquency charges so this is sort of the criminal history the court has to go on and i think that the counterargument to that are what's notable is that after he turned eighteen all the other was a speeding ticket so after returned eighteen you know his his brain is maturity is getting more developed and this incident has showed that he wasn't quite there yet the last two factors that i brought up in my brief that the court didn't consider or at least didn't take seriously were the fact that he does have family support he was employed at the time there was a little bit of questioning about what his status was a student i believe that parkland college which i think is a community college in the area of the champagne area  but this wasn't a guy that was sitting around him plotting this type of crime i have no idea and i can only speculate as to how he came up with this plan  but clearly it wasn't very well thought out and that's evidenced by the fact that he had to go back twice that he's pulled over reeking of alcohol or not alcohol gasoline and and  the fact that this offense that that was committed is totally out of proportion to the initial crime that he was sort of trying to take into his own hands did he even  roommate goes well you know these three guys were over earlier and maybe one of them took it so they go searching for him the roommate never indicated that it was it was larry greene that took the laptop so he didn't even know for sure that this individual was the one who took his laptop and and obviously he didn't know whose house that was that he set on fire this this is this is not somebody that is coolly and calculatedly doing things this is somebody who basically  completely lacks judgment and that's exactly what the report says in the trial court makes no reference and i think that it would be a fair statement to say that that judgment improves with time and experience defer to that sentencing court's discretion and the use of discretion is one of if not the highest level of most stringent standards review that this type of case has to be subjected to so if it has a very very high burden to meet in order to obtain a reversal or reduction of sentence the standards here for excessive sentence claims are whether it's a sense is greatly at variance with the spirit and purpose of the law were either manifest disproportionate to the nature of the offense and starting here with the nature of the offense this is one of the most serious offenses is originally charged was a class x felony the highest class short of murder and the statute of aggravated arson requires it to an attempt offense rather than a completed offense became to become only a class one felony subject to four to fifteen rather than a class extremes of six to thirteen so the defendant already has a great measure of leniency built in by nature of this the fact that he pleaded guilty and the sensing range was reduced by virtue of that guilty plea so keeping that in mind the thirteen year sentence does not seem to be a substantial if it were imposed as part of a six to thirty range where here it was imposed as part of a four to fifteen range on an attempt charge of course using gasoline accelerant to try to burn down occupied home is a very very serious crime and the only reason why it's not any more serious is because he was not successful in igniting the home in and in a way that could have posed an even greater risk fatalities to the occupants here's a trial court was justified in viewing the defendant as proof presenting an unacceptable danger a risk of danger to the public course the defendant tried to mitigate that risk by presenting dr campion's psychological testing but in doing so miss minimized and under stated both the extent of his prior juvenile delinquency and the nature of his crime and showing in trying to get a and eventually dr campion did say that he was with potential counseling and stuff that he would be a less of a risk to the public however child court correctly discounted that evaluation because of the sanitized version of the fence that the defendant gave defendant i think it's told the dr campion that he tried to start the fire wasn't successful and then went home when actually in fact he tried to start it on three different locations of the house even went home to get help from his roommate to research on the internet ways to burn down the house and do it successfully so this is why there is a what the chocolate if you this very frightening a disturbing elements of persistence and the dangerousness this defendant presented was not only was he premeditating and planning this crime but he did not even plan well enough to target the home of the person that he suspected was responsible for the theft of his laptop someone who he didn't even know to have taken it but just simply suspected to have taken it and did so something that was so shocking y out of proportion to that provocation is just such an unacceptable risk to the community that this this sort of crime is necessary this sort of sentence is necessary to detour other potential people in the community from thinking that they're can get away with acts of vigilantism similar acts even if there were greater provocation for example this sort of response is not to be tolerated in the community and the fact that there were innocent people that the defendant did not take heed of he was trying to target larry green admittedly but yet by trying to burn down a house he doesn't take into account the potential innocents lives that they could be at risk from an act of burning down  house so that is why that is why the trial court was was so concerned about this case and requiring it's a substantial sentence to not only punish the defendant for a very serious crime but also to to others who might think about engaging in similar crimes and also i think the dr campins evaluation report makes reference to prior incidents of fighting to defend it had when he was a lot younger those are triggered similar acts where similar incidents where the defendant felt that he was wrong somehow or disrespected by others and he retaliated by fighting and so now as an adult he's aska lated that level of retaliation and into an aggravated arson attempted aggravated arson so although the defendant is relatively young it's even though it's twenty years old this is not typical behavior for a person who is twenty years old and although he did lack judgment this is such a shocking and gross lack of judgment that it's just simply cannot be explained away by a twelve percent tile result on a cognitive assessment test from the wonderlic personal test that he took that doesn't explain why someone with a twelve percent while cognitive assessment is going to do something like this so the defended admitted to the psychologist his motions got it best of him so this is not really as much of a cognitive issue as somebody who's it let his emotions get out of hand although the i think the truck or also emphasized that it was not any psych the psychological report did not conclude that the defendant had any mental illnesses or psychological conditions diagnosed psych conditions that would explain his behavior so for those reasons the trial court viewed this is simply a crime that cannot be tolerated in the community and doesn't really have sort of explanation  or justification that the defendant wants to try to color this with to say that he was young and and had some mental issues and that explains why he would do something so out of proportion to the provocation there is the mitigation the record is the defendant points out this family support he does have some employment history and he was pursuing education at the time before he committed the crime and although the trial court does not have to give as much weight to the mitigating elements versus the seriousness of the offense and i think what the defense argument was here is that there was the trial court gave no wait a or  other argument could be insufficient weight to the mitigating factors but in the alexander case it emphasises that the reviewing court cannot reweigh the factors just simply because the reviewing court would have done so differently than the sentencing court said that it was considering the factors in mitigation and other than the sentence imposed defendant has to show that there is some basis in the record to claim that the trial court failed to consider mitigating factors morning he was receiving it so i don't know that this is a truth in sentencing offense and the as far as it being probation of all this is not the type of crime for which probation would be appropriate even if it  in fact a statutory eligible type of thing to trial court did not abuse this discussion in denying the request any request for probation i'm not sure if one was made on any other question terms thank you thank you i reduce it in the courts done so before i really i realize that that's a high burden but the appellate court has ruled before that the court may not simply focus upon one factor alone such as the seriousness or circumstance of the offense that's the donald case out of the first district that i cited in my brief and while a court may take the seriousness of the pence into consideration at sentencing it may also it must discretion by not carefully considering all the mitigating factors in fact it didn't really consider any of them at all it simply acknowledge them but it didn't provide any analysis as to how those may or may not have been mitigating the defendant put forth quite a bit of mitigation of events in this case that's probably why my counsel when he was advising him to plead guilty thought that this might be a good gamble because he's he's got a lot of things going for him but if that amount of mitigation is only enough to knock off two years off of a fifteen year sentence on a probation charge and the courts clearly not taking something under consideration this is the guy's first felony and he's going to prison for thirteen years  and yes he does not have a perfect juvenile history yes this was a serious crime but no this is not worth thirteen years in the illinois department of corrections and the court is able to to take that same stance and we ask them to the state's argument is really a lot of it we agree about it's the seriousness of it's a serious offense the court can consider that seriousness but as the state has spent most of its time and even in argument here explaining the trial court's job is to get past that and they didn't hear and that's an abuse of discretion the facts of this case completely blinded the trial court from exercising its duty to consider both the good and the bad about the defendant himself the crime has already been committed the defendant has pled guilty to it a factual basis has been agreed to in many ways it's time for both of victims and the defendant to move on and the only way that the court is going to be able to do that is to evaluate the defendant himself as a whole to the term and what's the next step because this is somebody that regardless of the trial court's ruling is going to be released and decide something and the offense with its class one sentencing range of four to fifteen years contemplates the possibility of a defendant being incarcerated for a while in fact for a long time so that it to use the words the state is already built in to the offense i didn't argue that the court you know use doubl i've provided for i ask this court to find that the court abused its discretion in sensing the defendant to thirteen years in the illinois department corrective and to reduce his sentence to probation if the court feels that probation is appropriate or in the alternative if the court feels that aid the department of correction sense is absolutely necessary to impose a sentence near