please the court counsel my name is liam meyer spending from the illinois attorney general's office on behalf of the people of the state of illinois this case involves three substantive issues as well as defendant's two main jurisdictional challenges jurisdictional challenges asserting that the people's motion to reconsider did not extend the deadline for filing the october eleventh notice of appeal is also presented in the case of people vs marker case number one zero six four nine four which is scheduled for oral argument before this court next tuesday january twentieth because that is the principle case that defendant relies upon for the straight stiction argument i would simply stand on my briefs for that on this issue unless this court has any questions and instead  turn to the second jurisdictional issue which in fact shows that the marker case in fact may not be relevant under the circumstances of this case after adjusting jurisdiction i will turn to the three substantive issues concerning whether subsection a for of the disorderly conduct statute violates the proportionate penalties clause second whether trial counsel was ineffective for failing to challenge the charging instrument pretrial and third whether there was any error regarding cross examination of people's witnesses so  october twenty fourth notice and the reason for that cited rule three o three b three which has to do with attaching rule eighteen compliant orders in other words the october eleventh notice was not rejected due to one timeliness and because this court never filed to the misdemeanor sentence on the felony charge the people's position is that the type of sentencing imposed is a separate issue from whether or not the statute itself is constitutional and that is the precise nature of the people's appeal defending the statute is a broader goal not only in this particular case but also for future cases and so abiding feeling isn't it an argument that can be a way that is also true indeed because the constitutionality of a statute can be addressed by this court in any case and  but you disagree that if even if the state had participated in obtaining the the disposition of the case that on one year probation in the classroom as a class a misdemeanor even if that happened that would have no effect on your other obviously this court took this case with respect to the a four issue and the ineffective assistance of counsel is a month it's dubious that we would have taken it just based on rather routine effect of assistance for resolution the people want to had an answer the merits just in case this court felt that it was possible to resolve all of it here since it is before this court at this time but certainly this court could decide to remand the matter to the appellate court for resolution of the other issues and indeed the people agree that the principal issue here is the constitutionality of a four and so just very quickly to address the final jurisdictional matter defendant challenges whether the circuit court had jurisdiction to issue the november thirtieth order because he claims that after this court on october twenty fourth rejected declined to file an docket the october eleventh notice of appeal that jurisdiction remained in this court so that the circuit court did not have jurisdiction to issue its really compliant order member thirtieth however the people disagree by looking at the text of this october twenty fourth order from this court because the substance of this notice stated that this court was declining to file an docket the case that shows there was simply no matter pending before this court at that time and so jurisdiction logically was located in the only other court that was ever involved in this case that being the circuit court after all there were two defects with the october eleventh notice of appeal number one it did not attach  order as required by rule three zero three b three and secondly there was no rule eighteen compliant order to attach as this court can see by looking at both the august and september orders from the trial court which are located in the defendant's separate appendix the with the blue cover up pages twelve sixteen and seventeen and because of that the two steps that people took were to first see can obtain a rule eighteen compliant order and secondly to attach that to a no new notice of appeal which was accepted by this court and is the basis for the case here presently so turning then well actually one one more point even if this court were to find a jurisdictional defect below the people alternatively argue that this court should use its supervisory authority to reach the important question of whether subsection a for indeed is unconstitutional because not only is this case pending for resolution of this case or this matter there are three other cases involving the same issue out of the same circuit court and indeed in other prior cases this court has recognized the importance of promptly having appellate review of declarations of unconstitutionality so turning then to subsection a for the circuit court found this provision to violate the proportionate penalties clause when compared to a twelve of the same disorderly conduct statute when applying the identical elements test this test provides that there can be no it cannot be two criminal offenses with the same elements that result in different penalties and certainly the parties here do not dispute that there are different penalties that result from a four and a twelve so the key then is comparing the elements of the two crimes one notable difference between the two is that a twelve has an extra element not contained in a four while a four requires that the offender have knowledge that the information transmitted is false a twelve also has that same requirement of knowledge of falsity but also requires t knowledge that an emergency response could result this is an additional element that is simply absent from a four and that alone is reason to reverse the circuit court's declaration of unconstitutionality there are all there are also two other differences between these two provisions subsection a four and a twelve differ as to what is transmitted by the offender under a four it is a report that a criminal offense has been committed and under age twelve it is a false alarm or complaint and this is certainly a broader group of potential reports that include could include less serious reports such as for example a cat being stuck in a tree a twelve and a four also differ as to who is the person who receives the transmission and a for the person who receives it is either a peace officer a public officer or a public employee whereas under age twelve it is a nine one one operator now the  argues here that nine one one operators are public employees however public employee is defined by statute as being a person who is authorized to perform official functions and whose salary is paid for by the state or a political subdivision there is simply no evidence in the record before this court about who pays for the salaries of nine one one operators and kendall county because defendant was the one who is challenging the statute it was his burden to prove that under the identical elements test that there was a violation and he failed to offer evidence to show that nine one one operators fully satisfy the definition by statute of a public employee but this court need only find one of these three differences to exist in order to reverse the circuit court and indeed there is a second reason for reversal here in some identical elements test cases this court looks at the charge conduct and first verifies whether it violates two different offenses that result in different penalties here defendant was charged for making a false report of a crime to a peace officer that only violates a four and does not violate a twelve because of that the court had no reason to compare these two subsections information first he says the information should have specified which of three or four statements he made contained the false information and he also claims that the information should have specified in greater detail the nature of the false comments made this court is certainly familiar with the strickland vs washington test that applies to ineffectiveness claims and neither the deficient performance nor the prejudice pronk can be shown here and the reason why there is no deficient performance is because indeed the information was sufficient so counsel could not be deemed ineffective for failing to challenge a sufficient information the question when reviewing sufficiency of informations asks not whether there are additional details that could have been added but whether there were sufficient details so that defendant could prepare his defense and here for example defendant identifies what he what he terms to be two statements that first he was standing outside his house when he made a statement to officer hanks and that soon after they walked inside his house and continued to talk he identifies these as being two statements but he never explains why the information we would need to specify whether the false information was provided indoors or outdoors that would have no effect on the way that he would prepare his defense and so this level of sufficient of detail is not required similarly regarding the contents of the false information provided that actually wasn't included in the information because the information stated that defendant reported that his neighbor edward boone had committed reckless driving and that he tried to run over him with his truck that was the nature of the false report made the level of detail defendant claims his missing only addresses perhaps the very specific ways that the state would try to show the falsity but show no confusion on his part about the nature of the of the offense was that which was defendant's claim that putting tried to run over him with his truck because there was no deficiency then with the contents of the information there was no deficient performance for failing to challenge it and even so there also is no prejudice here and that is because the people have pretrial a common law right to amend informations so even assuming that trial counsel would have made a pretrial motion challenging the information is any deficiency was found that people simply could have added more detail to the information and proceedings would have happened exactly the same from there resulting in a conviction additionally because defendant never explains how these alleged deficiencies at all affected his way of preparing his defense he can show no prejudice in turning men to the final issue in cross appeal regarding cross examination of people's witnesses the question  actually the issue is one that the circuit court has given considerable discretion in choosing to limit cross examination for reasons including for example restricting repetitive cross examination the test asks whether the limitation on cross examination created a substantial danger of prejudice and indeed looks not only to the cross examination that was allowed or was restricted but also looks to the entirety of the record to determine whether the information at issue came out at trial in other ways defendant claims that the trial court in appropriately limited the cross examination of edward boone however before the limitation three subjects were addressed to him acknowledge that there was a long running feud between them he also noted that they were opposing parties in a pending civil lawsuit and finally he has knowledge that he didn't really like to find it instead he would say that he was indifferent towards him this certainly laid the foundation of the tense feuding neighborly relationship that the two shared in a d in addition elsewhere on the record there was information about the nature of this feud during cross examination of officer hanks he acknowledged that there were numerous incidents that he was aware of between the two that there had been several complaints filed with the sheriff's department he termed it to be bad blood between them and he even provided three examples of this feuding relationship he noted allegations that a light lot line fence had been burned he acknowledge allegations of dumping of garbage on the other property and he acknowledged allegations of trespass therefore given all of this information that was in the record elsewhere the trial court which was the trier of fact here was adequately aware of the potential for proving to be biased towards to fund it but in any case even if this court were to find some sort of improper limitation that error would be harmless because after all the central rationale that the trial court expressed in finding defendant guilty was not based on the credibility contest between boone and defendant instead it looked to defendant's own description of the events it noted that defendant testified he was one to two feet from the side of the road at the time that  defendant testified that boone in driving never left the roadway and because the roadway was only slightly larger than the with the one vehicle any movement on the type on the part of boone to perhaps were in his driving could have only been very slight his safety was endangered also that the trial court cited the nine one one call which is in the record before this court the trial court noted that the tone of voice that defendant used was singsong in almost seemed like he was enjoying reporting his neighbor it did not seem as though he were frightened or genuinely scared as a part or as as because of the events that had occurred so because the central basis for finding of guilt did not depend upon  testimony his testimony was not very important and the state's case was strong since it was indeed based on defendant's own description of events accordingly there was no air in regard to the limitation of cross examination of  now defendant raises two other subclans that are related here he claims a trial counsel was ineffective for failing to make an offer of proof regarding what further cross examination would have occurred and he also claims the trial counsel was ineffective for failing to cross examine another people's witness deanna berard another neighbor for her potential for bias but these two sub claims fail for the same reason and that is because again since the central basis for finding of guilt did not turn on the credibility of other witnesses it was based instead on defendant's own description that is the reason why trial counsel or there can be no prejudice here because trial counsel's actions would not have affected the ultimate outcome of a conviction for guil accordingly if there are no further questions from this court the people who are to request that this court reverse this trial court's finding that subsection a for violates the proportionate penalties cause and in doing so remand for further proceedings that would include this or complaint descried in twelve is the reverse true it seemed to me in looking at the language in the context of the case that although the words were not identical they were basically describing the same thing and that's really the best argument i can present to you and i think that's what the trial judge was looking  at and the example i gave in the brief was there are some crimes that say without legal justification there are some crimes that are defined as being without lawful justification it's not precisely the same word but it conveys the is some element here of comparing the the acts involved in the particular case i think there is some slight ambiguity in the case law on this but the overwhelming case law is that you're comparing the elements of the crimes that must be a facial challenge is an element of a crime where the crime is or the act is report what is funny well i think he did articulate them and if you combine the written order with the oral pronouncements it seemed to me he quite clearly was finding the statute unconstitutional on the basis of comparing the onus of facial challenge and then when the state went back they said well no we want to fix this we want to fix this it wasn't correct now make it an as applied ruling and he accommodates finding of unconstitutionality by the trial court changed between the time he made his first two pronouncements on it comparing that with the return to the trial court well into the fall to the jurisdictional question here and you pose the question to the state of at the outset of their argument whether this matter is waived it seems to me the whole purpose the whole purpose of having an interlocutory appeal on an issue of this nature is to say well let's stop the proceedings now wait until we get a ruling on this from the supreme court of illinois and hold the sentencing in the band otherwise what's the purpose of doing all of this we now have a situation where there was an interlocutory order finding the statute unconstitutional and in addition to that we have a final judgment because mr clapper has been sentence and so we're awaiting him to i think it's fair to say we're waiting into his jurisdictional morass because the state didn't just say we'll hold on we need to resolve this issue first and they certainly had plenty of opportunity after he has not once but twice said this is a misdemeanor this is a misdemeanor i'm going to sentence mr clapper for a class a fence and they said and we say you know judge go ahead and send someone the state says yeah that's a good idea go ahead and censor so clearly they surrender the remedy that they would receive if this court would they have the opportunity to appeal affirmatively said yes go ahead impose the sentence you really can't lawfully impose your honor because you've made in a constitutional ruling don't think giving up the very relief that they seek from you i mean the court then imposes a misdemeanor sentence on mr clapper he's done with his misdemeanor sentence now but for the fact that there's an appeal here and i suppose the court could rule that he entered a void order and so mr clapper can be reset and spot for that the court has no jurisdiction over mr clapper he's completed so what was the date of the service to recall the date of the sentencing  he date of the sentencing i believe is yes to september thirteenth of zero seven and when was the it was another interesting issue i think  eighteen by the trial court but always this court of that particular point in time disagreed that there was an adequate finding of unconstitutionality by the trial court right or wrong no no here's the problem the state attempts to docket this case by filing its notice of appeal with nothing appended to not the clerk then issues this letter saying you know this isn't complete yet we're not going to accept it ok it's not an order of this court and no one could have possibly sa eighteen findings are incomplete because they're not attached there's nothing for them to look at the only thing the clerk is saying to them is basically why don't you refile this thing or try to dock redock at this case by attaching the right and there are actually tours there actually tours and if there's some problem with rule eighteen what they should be doing is coming to the court and saying we still think there's a problem with rule eighteen but we filed a notice of appeal probably doesn't have jurisdiction under rule three zero true will you please send this case back to the trial court certainly this tribunals can remember a case to the trial court for additional findings if if they are truly necessary in this case i don't think they are because if you look at the whole record everything is there but assuming there's a problem then they come to this court and they say remand it under three o two and then he makes whatever finding c needs to there's no more jurisdictional problem like we have here and we bring it back up certainly we still do have a fine eagerly so i want to look at it is the kind of situation elevate if indeed we agree with your waiver argument we could also or always use or supervisory authority issue powers to indicate whether or not we are green with that fine or well but which one which one you go to pick wasn't it suggested that there were several other cases carry the same issues yes and that's the other point i wanted to make  i'm not privy to those cases but apparently the state is if there are other such cases where the same judge the same circuit rules on the same issue and you don't have this jurisdictional outside jurisdictional issue that you do  cluster well why not decide it on the basis of one or more of those other cases where the court can clearly make that determination without having to wade into this problem this to act like to return to certainly he's guilty of the of the he could be guilty of the one that describes it as a crime but he could be guilty of the other because it's a false report the false statement i'm not sure which one is for and which one is twelve but we're talking about the cabinetry i guess right right so you say that it's identical could be guilty of both could be guilty of both right and that's what the trial judge  too but if he's not then guilty of the two subsections then they're not identical elements that right well you could certainly rule that they're not identical because they don't describe the same thing quite quite clearly you could rule that way so  and let me let me go to marker as well just for a moment i think the state is quite right that marker could be dispositive of at least one of the jurisdictional issues in this case and that's going to be argued next  week i don't know if you want me to go into detail about their case certainly i will be doing that a week from now but it seems to me that marker will be dispositive there is an interlocutory order on the constitutional issue that is entered here the state does not file its notice of appeal within thirty days of the trial court ruling and therefore under rule six zero six be there out of the box they've taken too much time to file their notice of appeal and if i could just add one more comment on this on this matter the underlying promise you're lying promise of the state's arguments with respect to the marker issue is you know it's just so difficult it's just so difficult to get something done within thirty days in the trial court and it just seems to me that we gotten into does this mindset that you don't get anything done done nothing can be done within twenty eight days of anything else happening in a trial court and that just seems to me to be a ridiculous promise you know when you're either a prosecutor or a defense lawyer and you're going into court on a motion to suppress or some kind of constitutional issue like we had here and i've been both prosecutor and defense attorney you should be ready what do you do before you walk into the courtroom you read your police reports you interview your witnesses you prepare their testimony you look at your case law if you need to prepare a memo perhaps if this particular judge wants a memory needs one on this issue and then he rules and how much can you be taken by surprise by this and how many issues in criminal cases are really you know that unusual i mean they tend to be very repetitive particularly in the search and seizure area so you march back to your office you're rev up your computer you print out your motion to reconsider maybe you have to do a little more research you walk over to the clerk's office you file it and you ask for an early date what trial judge is going to ignore a thirty day limitation of this court rules or thirty days only thirty days to file an int trial judge is going to ignore that time line and sit on something like this and not rule on a motion to reconsider when he's already heard all of these arguments so and certainly in civil cases where the issues can be much more complex there are similar types of deadlines and even shorter deadlines in many cases to to file you notice of appeal just do it  since i have three minutes if i may just want to hit the high points of the issues on cross  in this case with respect to the sufficiency of the charge and the limitation on cross examination in this case but i'm sorry let me restate that in all the case law dealing with pro utions that are based on false statements there has to be chris's with respect to the specification of the false hood and in this case there is no such specification we still don't know the basis on which the court found the defendant guilty even the state hasn't suggested to you which particular statement or portion of the statement was the basis for the conviction to say something is that is false he made a false report of course is a conclusion to say he reported reckless driving is a conclusion it's a completely different matter to say well i convicted him i convicted him because he was lying about where he was standing he wasn't really in the driveway he was somewhere off it wasn't even possible for him to have been been endangered by the other person's car that's completely different from saying well he didn't have a reason couldn't have had a reasonable belief that the guy was aiming at him with his vehicle because he was standing in his driveway but not in the middle of the road a foot and a half away when a car comes a foot and a half away from you let's just it's not reasonable to believe someone is aiming at you those are completely different matters and both the court and the attorney general and the state's attorney you know or disagree as to what the basis was of the conviction because a different times they say different things well it was nine one one no no no it was nine one one the states it was the totality of everything that he said  it and the judge says no no it wasn't nine one one it was the report he made to the police and i think this makes clear the point that we're just not sure what it is he was precisely prosecuted for and how does he then assert double jeopardy if the state decides we're going to prosecute him again this time we're going to prosecute we're going to be a little more precise about the manner in which the information has been allege on the question of bias and the restriction of cross examination we now have a two question rule two question rule from the state  had a feud going on yet we had a few so everybody knows off you do the same here you get to ask the complaining witness if he doesn't like the defendant that's good enough what do you know that's what they're saying what else you want you have the police officer you could cross examine him he doesn't know very much about their history but you can cross examine him there's no other evidence you can use to undermine witnesses testimony but listen this is enough this is plenty that's completely different from saying this guy came to my house he threatened me he committed acts of vandalism he's a religious bigot and so forth and so on it's a completely different view of the witness and how the trial court should view that witness and i don't think it's fair for the trial court to say at the trial i relied on these people to make my finding of guilty and then to backtrack later on and say no no none of that was important you know that was important thank you thank you well know what you got at least a couple minutes and i'll see you next week out i'd like to continue to address this issue of jurisdiction now looking at this court's notice of october twenty fourth this court stated there that the docket there would docket and file the october eleventh notice of appeal due to noncompliance with rule three zero three b three now this rule states and i'm quoting a relevant part that a notice of appeal filed pursuant to rule three zero two a one from a judgment of a circuit court holding unconstitutional a statute shall have appended there to a copy of the court's findings made in compliance with will eighteen and the notice attached a copy of rule eighteen therefore whether or not the clerk at that time could look at the august and september rules to see if they comply with rule eighteen this notice signal to the parties that in order to have a valid notice of appeal under rule three o three b three there needed to be number one an attachment of the order and number two that those orders do comply with rule eighteen now this court can look at those orders directly and see that inside on several bases they were noncompliant with rule eighteen they did not state facial or as applied they did not state whether the ruling was essential to the judgment they did not state whether the statute could be construed in a way to uphold it and they did not state whether there was proper rule nineteen notice these are specific requirements under rule eighteen and they were not addressed either in the oral findings or in these two written orders and that is why the state's first action in receipt of this notice was to go to the circuit court and get a full eighteen compliant order and again because this notice stated there  matter being opened in this court that the notice was not going to be filed there was no matter pending in this court and that is why defendant suggestion that the people should have asked this court pursuant to rule three zero to see to to remand for rule eighteen compliance would have been ineffective because there was no matter before this court to remain and and that is why jurisdiction logically at that point was in the circuit court and notably the fact that defendant makes the suggestion implicitly concedes that there was not rule eighteen compliance before that after all why other why would there be a reason to ask for this remain and otherwise and to then also address this question about whether was a facial or as applied finding the defendant sites confusion and statements of the parties as to whether this was facial or as applied but the question is what did the trial court do defendant never quotes to any part of the record where the trial court made a facial finding earlier and instead as this court can see from the transcript of the november thirtieth hearing this very issue was argued by the parties and the judge reaffirmed that yes he intended in as applied finding and that was correct the reason why that was correct is because a facial finding of binding of unconstitutional is only appropriate so long as there is no way that the statute can function propre a plea here a four provides that there are three categories of people who can receive the false report peace officers public officers and public employees so even accepting for the moment defendants argument that nine one one operators are public employees that would still mean that a four could function constitutionally regarding reports made to peace officers or reports made to public officers and that is why the whole subsection a four was not invalidated by the circuit court's findings which by definition isn't as applied finding so that was not the the people trying to alter what had been made before as  nt seems to contend instead it was simply looking at the requirements of relating and making sure that it adequately reflects the circuit court's intentions through the august and september orders also then  touching briefly on this waiver question the people agree with justice thomas that not only was the reason for the people challenging or appealing here to try to get a certain sentence for this particular defendant the other basis for filing this appeal is because of defending generally the validity of the statute which applies in many other cases and so that is why acquiescing to a particular sense in the case you are if you are successful what relief should we grant you the relief would be t regard i'm sorry we know exactly what happened what is the record demonstrate you have one of the state to join the agreement on this my memory is that when it was suggested that it was time to impose sentence that the people said yes let's proceed and sentence as a misdemeanor but that's my memory i'm not one hundred percent sure but in any case the issue on appeal is not only this particular sense it is the velvety of validity of a four generally which again is raised in these three other cases that are holding before this court the question of the constitutionality of a statute is a more general broad situation that this court could address independent of this particular defendant and so just because perhaps as justice thomas suggests that we might have agreed to this particular misdemeanor sentence here that does not mean that we have either conceded any challenge to defending the statute and a general sense so then turning to the question of a for constitutionality well actually i'm going to take a step back and address marker real quick because defendant addressed that as well now as defendant correctly notes this will be argued before this court next week but i'd simply like to make the point that it is very important to have this ability to have motions to reconsider in the trial court before appeals happen now it's easy for defendant to stay standing here that at a trial court who's on the button could always rule on a motion to reconsider within thirty days number one that does not recognize the heavy dockets that are faced throughout this court or throughout the state and secondly it is certainly as the as this court is of appellate court this court certainly knows there is good reason for the trial court to have deliberate well thought reconsideration before an appeal leaves the trial court at its best for errors to be corrected in the trial court before an appeal even occurs and the second point to be made is not only is this  a good practice it is also the accepted practice for the last thirty years and that certainly plays for how the illinois bar has regarded these rules in the past so then moving on to subsection a for would simply like to say that in answer to justice burke's question a false report of a cat stuck in the tree you would not violate a four i think because a four specifically says it's a report of an offense which is defined in statute as being a crime there is no crime involved with a report and an answer to justice remains question there is not two way identity here if yes a false report of a crime is a false alarm but every false alarm is not a false report of a crime and that is why there is not precise identical elements here there is not overlap that goes both ways and indeed this most importantly there is this extra element in a twelve that the person must have knowledge that the call is going to result in an emergency response it is certainly foreseeable that a young child could call nine one one not fully understanding what could result as a as a consequence and perhaps this element was included for just that reason to make sure young children who don't know the harm that could result from their call that they should not be held responsible as missed as under this crime also quickly as for the information in the sufficiency defendant does not show how he was not made aware of the nature of the offense his pointing out questions about where exactly was he standing and things to that nature that is an extraordinary level of detail that is not required he knew the nature of the offense was that he was standing on his property when edward byrne drove his truck by he was fully aware of the date the time the people involved that is the standard for viewing the sufficiency of information and i see my time is expired so