a little later a presentation than we ordinarily have we're going to call case number one one eight seven to eight people of the state of illinois versus james chair are you ready certain offenses that by their nature provides some other means of accounting for the use of a weapon in the commission of the crime this language ensures that if a separate and specific statutory provision if it is present that can be relied upon to account for the use of a dangerous weapon then it cannot also at the same time be a predicate for armed violence and this avoids the problem that this court found out child under the identical elements path where it was finding that there were charges being brought under armed violence that had identical elements to other charges that would have been brought under the more specific statute and that because the penalties did not line up exactly categories of offense to be lewd it has to either provide a mandatory sentencing factor that elevates the sentence to the use of a dangerous weapon or it has to have as a element of the base offense the define basis fantz or is that term anywhere else in the criminal code to give some context as to what the legislature meant by those terms he only plays in the code that offensive which really talk a lot about appears here i believe so but the context makes clear that the base offense is referring back to the felony that is being alleged as a predicate felony for the charge of violence so that language also shows that the base offense has to be a single defined set of elements because the statutory language requires looking at that set of elements and seeing if that  includes the use of a dangerous weapon and it the analysis doesn't work as well if the base offense is something like aggravated battery just generically speaking because there is no single defined set of elements so it doesn't make sense to say that there are certain elements of the base though based on the context i think it's clear that the base offense asked to be here aggravated battery with causing great bodily harm and so given that that is the basic fence it aggravated battery causing great bodily harm is not lewd it under the category of those that have an element as an element sensibly because it's not even a felony under illinois law and i think what is important is that the court has to look at what is being charged as the elements of our violence here the additional and handsome man use of a dangerous weapon so here there is no aggravated form at all of aggravated battery causing great bodily harm because there is no other place in the code where you can join my only explanation is that the general assembly seemed to be trying to be as in to save us possible in ensuring that there were no further work in the penalty file ations as it were it found in house child so the legislation wanted to make absolutely clear that if there existed another way under the criminal code to charge the base offense plus the use of a firearm whether it was through a sentencing provision or as an element of the offense that would be excluded from the our violent statute so that there wouldn't be these competing offenses that have the identical element actually the legislative history here is important too i think in understanding what is meant by a and because this court has actually reckon i've repeatedly that this particular statutory amendment violence and that makes sense given that what the court is looking for in identical own hands is whether the exact same conduct can be charged in two separate ways under two competing provisions and  here particular predicate of aggravated battery cause great bodily harm there is no way under the code that those elements can be joined to the use of a dangerous weapon to create a single crime unless and it reasoned it that where there is a statute that provides egger baited forms in some cases where that aggravator is not the use of a firearm use of the armed violence statute can be the only way to ensure that the aggravator that being used for that offense is going to use a firearm and that the resulting sentence for that conviction can therefore take into account all of the different aspects all of the different aggravating after acts of the defendant particular con so if this were to adopt the defendant's reading of the amendment to the armed violence statute it would it would cause the amendment to have a much broader and much more restrictive of fact and i think the general assembly  discussed it was an intended response house child and so the general assembly sought to hear and through very expansive language maybe even redundant in certain respects sought to cure that problem but under the defendant's reading the result of that and them it would be to exclude a much broader universe of potential predicate offenses from the armed violence actually so here there are twenty four different forms of aggravated battery previously under and identical elements analysis only one or two of those would be precluded as predicate offenses under a sort of identical elements now but under the defendant's reading of this amendment the general assembly has essentially swept away the entire aggravated battery statute as a means of charging armed violence and i think that that is just absent from the legislative history and that ignores that there is also an intent by the general assembly and acting the arm minus statute to really reach broadly to provide that the use of a firm in the commission of quote any felony can provide the to raise i think the plain meaning is that the base offense for example has to have ingle defined set of elements i think i would have to concede that the word of fans can be used in various different ways so just some extent it might be ambiguous i mean certainly in common usage it might have a meaning so but to the extent that the court were to deem that they view it certainly it should be guided by the context of the statute and the purposes of the legislation which was only in this case to prevent a proportionate penalty in violation is it your position that  to do as we're doing here which is to look through the code in c is there another provision where there is an aggravated form that builds on this form of aggravated battery and then and on the use of a dangerous weapon and if there is another section of the code that encompasses that then that would be precluded under the second category because it would exist in an aggravated or enhanced version that accounted for the use of a dangerous weapon thank you like to address briefly unless the court asked for their questions on the statutory issue on the basis of the defendant's proserpine i just like to emphasize that the issue that properly before the court effectiveness is strickland or chronic and i think that the argument has has shifted a little bit in his reply and he has now started to suggest that perhaps a trial for itself committed  but this would be a forfeited issue at this point because it's the be the first time that he's actually argued that it wasn't something that was on council that created the error but something that the trial judge did in ruling on his motion but even if the court were willing to look at that issue as to whether the trial court did conduct an adequate crinkle hearing or whether those strictures were complied with this is a fairly unusual case in claim of trial counsel's ineffectiveness but here before that hearing had taken place and it requires a certain threshold showing by defendant before that it even happened at the judge also had already decided to appoint separate counsel and he did this for all post trial purposes including sentencing and also for are going to post trial motion so grateful at most would entitle defendant to separate counsel and it was necessarily satisfied here because defendant did have separate counsel to argue his motion and the proper framework for manalive in his claim now is whether that close trial counsel provided effective assistance and as a sport knows this pander that this part uses in almost every circumstance improper to allow the prosecutor the park so are you saying this one once the attorney was appointed it became second stage for the next stage of looked at and not to join in a claim that no i was incompetent at trial so what all of those cases are looking for is whether the defendant should get new counsel and that new counsel will be will not be completed and will have you know independent duties of counsel and that require him and was met here so i don't think it's fair to say that there was actually a preliminary  yes i think both defendant and counsel at this hearing said it that they had a breakdown in communication i think at that point the defendant had already filed his letter so it might be fair to say that part of the problem that had arisen between them was that he was claiming ineffective assistance but neither of them cited that at the hearing as the basis for counsel's motion to withdraw and the court for all purposes then it wasn't just for a post from motion but also for sentencing appointed him new counsel going forward these honorable court and esteemed guess i'm susan will him with the office of the stick alexander and i represent the defendant aptly james cherry and james cherry's conviction for armed violence is void because our violence cannot be predicated version of aggravated battery yes they're right and the statutory language says that to prove it had a related battery causing great by lee herman the state is to prove that the defendant intentionally or knowingly cause great bodily first has to prove that the bennett fenech committed a bad yes right and the state does not first have to prove that the defendant committed an aggravated battery correct now while the statute giving the plain language of the aggravated battery with a firearm statute is it more accurate to say that rather than being an aggravated or enhanced form of aggravated battery eg of a dead battery were of with a firearm but aggravated battery has a form of it under the one battery with a deadly weapon other than discharging a firearm and because it has a subsection within it within that basic things of aggravated battery it's enha or and i think that one of the things that we need to do here is to go back and look at some of the when you talk about the definitions and how this started in two thousand and seven when we have and the statu invasion that had categories based on firearms so at the time that the statute was amended it would have been within the legislature's purview to realize that felony offense was a broad category that within it it could have separate sub sections aggravated or enhanced by different behaviors and when we asked what the legislature intended from this two thousand and then it intended to prevent robbery from being a predicate prahran beilenson but also to stop the other proportionate penalties challenges where did they accomplish that in the statute the easiest thing to do would have been to insert the word robbery there in the list of exclude felony offenses right next to armed robbery but they didn't do that so which category covers robbery it doesn't have possession and use of a dangerous weapon is an element of the base of them it's it doesn't have a mandatory sentencing factor that's armed robbery so the legislature intended robbery to be that second category where the possession or use of a dangerous weapon is an aggravated or enhanced version of that dense robbery is an offense that can be enhanced armed robbery just as aggravated battery is a defense that makes the use of a dangerous weapon and enhanced version of the  about aggravate and hanson those two distinct words i think the best example of this would be to look at the aggravated kidnapping statute ackermann kidnappings was one of the specifically precluded offenses in the two thousand version of  now it's not it was taken out it has to be end of this catch up and we touched on aggravated kidnapping has seven different ways to commit it there are four ways to aggravate you can hurt a person over thirteen you can the sentence by fifteen twenty twenty five to life so in that in that section and aggravation and in hansford has two separate meanings definitely it does for aggravated kidnapping so should we be reading that those ideas into this ditch that aggravation means additional element and hance meant means additional sentencing factor i think my point is more that the state is arguing that you need some sort of  only looking at subsections here and i do not believe that the legislature intended this to go down subsection by subsection because if it did then the two thousand and seven amendment now allows certain forms of aggravated kidnapping aggravated criminal sexual  salt or aggravated vehicular hijacking to again the predicate offenses for armed violence because they have subsections that are aggravated for conduct not requiring a firearm and what happens when these offenses are committed with a firearm the prosecutor wants to charge with the aggravating factor in the firearm use can they predicated on firearm subsection on armed violence under the state's interpretation yes and once we start predicated on the subsections of armed violen we're going to open the door again to another wave of these identical elements for portion of penalties challenges that this two thousand and seven and then that effectively stopped dead in its tracks do we that's what the legislature is trying to prevent and i there's one offense of aggravated kidnapping and there are seven ways you can commit your hands and regardless of how it's charged it cannot be used as a predicate i believe that under the language that this that the legislature used here yes they intended that that's all to cover that situation and you think that's fine or because of the name good will your honour's the fact that we're here i believe that it's plain but the fact that i'm standing here with you and i'm getting a lot of questions i believe that there statute i don't think it was intentional i think that the language has evolved over time i think that the way we look at these has evolved over time and so i would ask that if this court believes that the two thousand then that is subject to different interpretations and therefore have one more anyway i why would you need to stare at you to read this way you know we i went through the whole thing about no air pervades the battery statute but it's why would the state you'd have to read this way to support your argument statute be very clear if it was really read that way you know it would be much clearer and i think that we end up in the situation that this court was in with blair that guy if you call him blair by amending the armed violence statute there's the question did it  and the armed robbery statute the other way around the question is when you're amending armed violence it ends up having implications on the other statutes under it and sometimes they're not all looked at again the look they look at  this court is always in force triangle is it gives us what we don't have here it gives us a record immediately at the time of trial of what happened what errors occurred and that is something that we simply don't have do what i asked him to do it was ineffective and then the trial judge has to decide whether or not this is a real problem and if perhaps there's enough showing then the remedy is the trial court appoints a new lawyer who can investigate those  motion by saying the motion has merit he has this is his motion this is his burden to move forward by not presenting any evidence he's effectively doomed this to failure the only new issue that he added after a year to the court was to say that the cherry tree trial counsel failed investigate medical records would have shown he was not drunk at the time however of his motion through sentence he argued that cherry was drunk at the time and all he did was make this very allegation of the seven injury hearing he didn't bring in medical records or anything to support this allegation he did nothing to present evidence at an evidentiary hearing where he had the burden of moving forward on this and by doing that he simply abandoned his burden his representation was in action and he so completely deny james cherry of the fair hearing it claimed that his prejudice should be presumed here cherry had the conviction proceedings when cherie tries to raise these claims in a post conviction this previous denial is racially he will have to assert new facts or new evidence and basically abandon all of these claims in order to get through the because of that that hearing held on january sixteenth two thousand and thirteen was an adversarial hearing it violates this court's ruling people be jolly and i would ask that the court remain in this  all of the same elements whereas the aggravated battery charge would have a great bodily harm the aggravated battery with a firearm would only have just any injury so i think what the appellate court was looking at is the fact that it is true that aggravated battery with a firearm is a more severe crime in terms of his characterization so that would be a classic felony as opposed to just pure aggravated battery without armed violence around it that would be a class what's important here is that the appropriate sentence as determined by the legislature is what happens when both of those aggravators are present and that that sentence is provided by the armed violence statute so the legislature  decided that where you have great bodily harm and you have the use of a dangerous weapon and you've committed armed violence and you are in the sentencing for a class x felony with a twenty year minimum so that is the way that the legislature has accounted for all of the different aspects of the day the defendants conduct where you have the dual aggravators here and not just one or the other d and therefore that would fall within the third category this lewd offenses but our point is just that you have to look carefully at the elements of it priming charged and either within fit within one of these three categories and if it doesn't precisely fit within one of the three excluded categories then it's still an appropriate basis for a charge of violence on certainty as to what the legislature is and was so therefore because we have here the clear legislative history as to what this was intending to do in terms of avoiding identical elements problems ruled lenity doesn't come into and it's important here that even on deficient performance counsel is presumed to be competent and he's presumed to have undertaken an investigation and decided as counsel is prone to do i making strategic decisions that it was better should not prevent the defendant as a witness at the hearing and it's presumed that he did that for the reasons so the defendant here has failed to show even deficient performance but again because we're in the realm of strickland as the court noted this wasn't a complete failure at a minimum what counsel did at the hearing was he emphasized those portions of the motion that he thought were the most  a value that for example a poet counsel often does and in highlighting certain arguments as those that should be pressed he added that value to both trial hearing and then because where we have to certain defendants still has the burden of showing prejudice and this claim of his that he's now precluded from raising this issue again i think even he conceded that he's really not precluded if he comes up with new evidence if it turns out that there are witnesses that would have exonerated him that counsel failed to find the finish has a burden of finding those witnesses and introducing that evidence he just hasn't done so yet and there's a possibility that out of a closed conviction proceeding if those witnesses exist then he will have an opportunity at that point to proceed on his claims thank you he's from the ron ron eight seven to eight people  reception mediately outside the courtroom we'd like to join you in you know a few moments obviously we can't discuss the case that we have before us tonight but we certainly do hope to have some time to enjoy your