thank you your honor and may it please the court counsel mr mallock and sens that he has stated the gist of three separate constitutional violations any and all of which should be advanced to the nd stage of post conviction proceedings if this court finds that se pleading as it exists does not standing on its own advanced the gist of a constitutional claim mr met with contends that because of his unique situation in his particular mental abilities and difficulties in expressing himself the act and because of his case coming from you'll typically the act is unconstitutional as applied to him and the facts of this case in this situation this petition serves as the initial review of his conviction and if he is unable to assert how his constitutional rights were violated without the assistance of counsel because of this extremely unique and diff situation involving how his case came before the  individually as a defendant counsel should be i'm pointed to him to ensure that any claim that his cost juvenile rights were violated is properly preserved and review start properly presented in review i will focus my argument initially  on issues one and one see before discussing the constitutional challenge more in depth but i'm of course happy to answer any and all questions if the court would like to me to focus on a particular part of my are you turning to the petition itself the strongest claim that mr mallock advances in his pro se petition is that counsel was arguably ineffective for failing to adequately investigate the only practical defense mr mallock have which was an insanity to the evaluation to perform efficiently the law the law requires counsel to investigate both the law and the facts in this case counsel sought to investigate facts but to do so he needed to procure expert witness fees from the trial court and to do that he needed to establish mr malik's mr miller contends that counsel did do the st part he established the facts that would establish that prove mr mallock was indigent however when the court reached out to counsel and asked counsel what precedent he was leaning on what case like he was leaning on to where a defendant who is represented by private counsel would be intitled to expert fees counsel didn't present the court with any clickable law and that's where councils investigation this case failed there was an investigation of both the law and the facts in this situation the court asked counsel at the trial court for a law that would have explained it and even though the law existed counsel was unable to present to the court in that respect counsel arguably performed efficiently and that prejudiced mr mallock because you deny him access to the only viable defense that he had on the facts of this case mr malik unquestionably committed the act in the adams county jail the only possible defense he had either to his ability to form the intent to kill or his ability to appreciate his actions altogether was an insanity evaluation by failing to procure the necessary materials in to convince the court when the court sought counsel's guidance the court there through the court counsel arguably performed deficient it's important to keep in mind for this bill's now i know you addressed this in your brief but what specifically did counsel fail to argue to the coroner what case did counsel  in presenting the court to establish that defend it wasn't titled t the court building the case that's most clearly on point is in re t w which is a case out of the st district and i believe is cited in the race in right t w made clear that it is the indigents of the particular defendant that we're looking at in this case and that's what counsel that's what this case really turned on if you go back to that situation the court was struggling over the fact that mr matalin parents had paved part of the retainer or counsel who was private counsel and the court and counsel said that he believed that even though he was privately retained counsel that mr malik only needed to prove his indigents to qualify for expert funding and enter a t w which was available to counsel and would have clearly and expressively answered the question in this case was never brought to the court's attention of the court asked for and if you look at the language not to my knowledge i although i can't say for sure i believe that that and even if it had the king in case the council did cites it was not nearly as direct on point particularly to the specific question you know as this developed in this was something that did develop in the kind of in the moment because as as the hearing progressed along the court expressed a concern over the fact that private counsel had been retained in then the idea of well what are we looking for for the for the intern see here sort of kind of came out and that's when the court reached out and said wait a nd is there anything that supports your position and that's where the that's where counsel fail d because in that moment the answer was very clear it was not a hard answer to come up with and counsel for the prevent prepared for that or counsel should have gone back later and said all right i didn't have the answer then here is the answer now the answer was there and was ready to go if counsel had just simply presented to the court and arguably that may have changed the outcome that may have induced the court to give to grant the motion and permit mr malik the materials the funds that he needed to ascertain whether or not this was a viable defense but again counsel failed to investigate the law failed to be prepared in the moment and then failed to go back and present that law to the court later to correct the court's misapprehension because while i know of no case law that says that the defendants indigency is can can qualify as part of a dependency analysis and so i don't think that that answers the question either i think that even if mr mallock had been a dependent quote unquote he was we're still looking at the individual defendants indigents it's important also i think to keep in mind that the the the section of the code that the experts feel analysis under is one thirteen dash three which also pertains to the appointment of counsel and i i don't have the case of the top of my head right now but there are cases in the past where if somebody else of pays the bond for example that doesn't go into the analysis of whether or not an individual doesn't qualify for a public defender so whether or not the the the whether or not some outside party comes in and provides funding or anything for the individual defendant doesn't go into the analysis of whether or not to defend this in the we look at only the defendant themselves when determining whether to whether they are indigent and in this case i think it's quite clear that mr mallock himself defendant had multimillion dollar parents but was lived at home had no job had no apparent assets it would be his indigency that river be the determining factor for a trial court judge to decide whether the county should pay for his expert and he have to hire the most expensive group of criminal defense lawyers available available resources may be it's that he happens to be indigent therefore the county has to pay for his ex that is that is yes that's ok i think that a case that has come after this off in the st district affirms that because i believe it was the defendant's aunt or some other family member who had paid for private counsel and jerked off asked for expert fees like in our situation here this is a dependent but again i don't think the dependent situation changes the analysis at all because then you're just says we only look at this individual the fed how far is the what's the scope of our vision and the interest to determine it's yes all wrapped in the same in the same statutory provision in addition to the st issue malik alleged the counsel was ineffective for failing to perfect an appeal in this defendant does does not always need to allege that he told counsel he sought to withdraw his plea in the initial crossly pleading so long as he satisfactorily explains why he did not request an appeal earlier malak contends that he has done so by explaining that he is unable to prepare the petition himself and had to do so through next friend that he does not understand his rights that he doesn't have adequate access to a large library to learn of his rights and that he has both orally educated and mentally ill this explains why he did not seek an appeal earlier i think it's also important to keep in mind that if you look at the timeline of this case mr malik pled guilty in may of two thousand and fifteen and only four months later in august of two thousand and fifteen he filed the post conviction in the situation he has adequately explained why he did not request an appeal earlier and this states the gist of a claim that counsel that he thought that he sought to review his claim that he sought to challenge his plea and that when he was an evil to do so that's all he needs to state at this stage on those grounds this court should advance mr malik's petition to the nd stage if this court however finds that none of those are the gist of a petition now it does contend that for the reasons primarily detailed in my reply brief at the act is unconstitutional as it applies apply to him in his particular situation and i want to be very clear that this is this this presents in my research of the law a rather unique and specific situation and so this as applied challenge is very specific only to mr malik's particular situation that is where we have a we have a defendant who pled guilty who is as the record bears out extensively has a number of mental illnesses educational struggles he only has a th grade education only rendered fit to assist counsel during trial on extreme regimen of medications as the secured record and the psychological evaluations made clear and in this particular case because of mr malik's unique situation and the procedural posture of this case this case serves as an initial stage collateral review this is the st time that mr malik's constitutional injuries are are able to be addressed and because it's the st time that this is this has happened because this is a unique situation and the action does not permit the appointment of counsel to assist mr mallock who is utterly unable to adequately present his injuries to present his claims in an understandable fashion the act is unconstitutional unless it provides for some provision to allow counsel to mr matt the reply brief details the logic behind this question sort of falls into a crack that our the united states supreme court has identified but refused so far the answer is does the right of counsel when reviewing a a conviction extend to this initial review collateral proce in coleman and then later in martinez in ryan the supreme court the u s supreme court did suggest that the answer would be yes if the right situation presented itself malla contends this may be that situation because again he is poorly he is he is poorly situated to present these claims to the court himself and because of the statutory scheme and the structure that is in place it would be impossible for him to adequately present those claims to the court and he has not had a proper opportunity to have his claims heard this is the st time that any reviewing court whatsoever has been able to review any constitutional claims he might have had and because so much hinges on what is filed in that initial petition mr should be appointed counsel to cure that to cure that constitutional problem and to provide that he'd in to ensure that his constitutional rights are protected i do concede that there has never been a case in illinois really demonstrates the factual differences between gone and mr mattocks case and when you look at the position mr mallock is in the position he is in resembles how hurt far more than it does the cases that have held that there is no right to post and i do understand that this is an expansion but again because the supreme court of the us supreme court has identified an outstanding question i believe that this case falls into that category that initial stage collateral review yes it's a collateral review but as the st true opportunity to review mr malik's quite and without counsel mr malik's constitutional rights are being violated and the only way to properly remedy that would be to appoint counsel to assist him in levying that initial challenge to ensure that there were no constitutional injuries that he suffered during his initial trial and plea proceeds and if there are no further questions  performance the problem with this argument is that there was no pertinent well established law to direct the court to defend counsel argued that if it was in indigent and the obligation to pay for the defense was on the defendant not the parents that argument with me at the hearing when the court asking fans counsel for president he found counsel pointed to the kenyan case which she had cited in her motion and thought the area of the an indigent defendant for securing the necessary expert witness may violate the constitution none of the cases cited in the brief address the issue posed by the court which is whether defendant who lived with his parents who paid for his canyon at least had some similarity in the facts were defendant was awarded an expert witness fee the fight the fact he had originally hired to provide private attorney and only later was found to be indigent was mclean's the order that the supreme court directed us to accept mr matt lates document as a notice that issue itself don't we have to address whether in fact the document that apparently we're supposed to construe as his appeal from but you really need to address that st before we get to the substance of the allegations yes i would yes i do i believe  b nd issue the post conviction hearing act is not unconstitutional as applied to defend it where he was not denied his right to count even though it was his st year of review since he did not directly appeal  began to appear however this is not true nor no court has made an exception to these rules however it does not have a factual situation similar to the one here you know how hard it is dressed  are generally generally ill equipped to represent themselves however in illinois the st stage postcondition proceedings the court is through court has purposely made a very low threshold for survival because most petitions are drafted by defendants with little legal knowledge or training i defend it need only a legit just of a quaint a limited amount of detail not make legal arguments or cite a legal authority in this case defendant had the say anything about there you just simply gloss over it saying that well if it's it's well established that when the claim has a pair on the face of the records write it we're supposed to assume it is or relies upon the kind of information which would be difficult believe the allegation inside of that is is is me in his in his petition i'm going to i'm going to look at the petition and apologize one comes in that comes in his motion to request later which we were told t but in his actual petition the petition that's before this court on appeal now he does allege that counsel was ineffective for failing to perfect and peele the only logical conclusion that i or you can reach from that is that he sought an appeal and counsel failed to doesn't need to be in there if it is readily apparent as to why if there is sufficient explanation as to why he didn't request the appeal earlier and inside of mr malik's declaration he does point out that he does not understand his rights he dropped out of formal schooling in the th grade and i remind the court the petition itself is prepared for a next friend indicating that mr mallock himself could not even prepared this so there are beyond the petition we get the motion and lemonade the comments that he made to correctional officers that he's really upset with his lawyer because his lawyer last played insanity and he just that he's not it's now where the judge is careful to talk to him about the fact that he is taking these medications and that's why it's really important that we want to understand rev you really understand what's going on and yes he does have you discussed it with your journey yes i have have you have discussed it with your parents yes i have but that doesn't that doesn't affirmatively rebut the fact that he may have sought advice after outside of this record and was frustrated by counsel all what happened in the court doesn't rebut something that may have happened beyond he may have simply said yes in the court at the time not comprehending his rights which is a similar problem to what we hadn't heard and it's so you want the claim to be raised outside the record but even rebutted by something within the record by time is expired may i if i could answer i don't think we have to look outside of the record because we we don't need to look the answer outside of the record and that's why we need to advance to the nd stage it is possible ineffective assistance claims often with the answers lie outside the record because only two people were party to that conversation client tells and that's why it lies outside the record