and he did not receive a fully late legal transfer hearing from juvenile court to adult court like to begin on that point the discretionary transfer here testified that one of the counts one of the results of the sex offender evaluation is a determination as to whether the community based services for sex offenders are available to this that year or whether it would just be too dangerous to the community still out community based services to be rendered to the juvenile the purpose of the of the transfer hearing is to balance the best interest of the juvenile particularly as to its potential rehabilitation against society's interest and protection however in this case when the juvenile court judge was commenting upon the evidence vote is there a reasonable likelihood he can be rehabilitated before the expiration of the possible juvenile court jurisdiction again there is simply no information to suggest that he can be rehabilitated within two years time the issue before the transfer judge was that the u s senate was nineteen years old a time the judge will find that it was only two years more of juvenile jurisdiction nevertheless the probation officer testified that in certain circumstances a person could complete sex offender evaluation within the time period remaining in the juvenile court jurisdiction in this case so there was a pasta judge had before possibility that he could complete sex offender evaluation within the time period add to you resource available of the sex offender evaluation did not have that presented to the court under the case of people versus clarke juvenile court judge can order it investigation in order additional evidence be presented to the court and any either statutory or non statutory factor i judge no information and one of the statutory factors that is is that is there a possibility that the senate can be rehabilitated within two years time facing ten counts each with a six year minimum for a total of sixty years so there was quite a quite a dilemma and quite a decision facing the judge but nevertheless the illinois supreme court and buffer is this related that juveniles are more capable of change than adults and again they're less deserving of the most severe punishment much shouting and much anger when the police arrived he was questioned in the presence of his parents but he but he had been through the rant by the father by the uncle i should say in addition as was in the record had a history of mental difficulties just four months after the police questioning he was found unfit to stand trial in addition to this history of that last he had no prior experience with the criminal justice system and he could have been emotionally drained and mentally unstable at the time the police questioned him member he was at work he came home and was confronted mediately by an angry uncle as bit by an angry uncle and aunt had given the circumstance the rest the defense attorney in not pursuing a motion to suppress now i understand that emotion suppressed some kind can be deemed as a matter of trial strategy however in this case it's not because we have the direct testimony of trial counsel in a post trial here and when they asked what was the downside to filing a motion to suppress evidence the answer that the attorney gave was that well if this was going to be the judge that was going to hear th negate was voluntary the judge was going to hear the statement one way or the other if there was no motion to suppress the judge was going to hear the statement by the defendant in the course of the trial and indeed it was introduced at trial and  colored as a confession admission by the defendant yet there was no motion suppressed by not pursued under some theory that she didn't want the judge to hear it the judge is going to hear the case therefore  did not receive the benefit of an attorney who worked to make sure that only admissible evidence was admitted at the trial that is only make sure that only balance every state which riveted a trial there was no attempt to do that and it can't be mr gonzalez is not proven guilty beyond a reasonable doubt the testimony that the evidence was consistent primarily of the testimony of the two young children marco and bianca fresh in the minds of most of the children however the testimony in the recordings that remade a few days after the disclosure buried wildly from the testimony of children at the trial years later they  inconsistent unreliable and improbable that what it is that the events that they testified to the young man marco testified that if you cut called three instances this was on the tape a few days after disclosure said it happened the st time the last time and one other time the girl bianca didn't specify a number their fact said she couldn't remember much at all about it marko at st with asked what happened said i don't anything occurred she denied it your parents your mother justified she asked bianca if you've been inappropriate with an adult or with her older brother and she denied it there was a nurse medical records person that made to do something that you did not want to do and the notes indicate that bianca denied that was the case client in juvenile court request a sex offender evaluation no judge ok and so the only discussion of that was from the juvenile probation officer basically ok when the when judge buick was making her findings one of the issues that should be talked about is the difference in the in in the punishment or in the rehabilitation efforts of the of the cendant the juvenile did did she even talk about a possible sentence in the in adult court in her comments and in her findings she made a comment on it i can tell you that she made a comment in her findings but it was a topic that judge unhappy and reversed your voluntary transfer when in saying that there was not even any discussion of a possum all penalty in adult court what do you think this decision would apply to your client's case absolutely justice and we argued in our brief that under under people versus clark court he has the ability to order further investigation if the the court believes that it's not had any previous contact with the system he had not been offered any services by the system as a result of that circumstance she found that it was she didn't know what he would respond well take well do what he was supposed to do and therefore she found those services or the this this fact to be very important what about that issue it would look to her history investigation would reveal whether he was likely to respond if it's from the a services off e let's talk a little bit about ineffective assistance maybe not filing the motion to suppress was a could be considered a strategy and will not talk about that at this point but the real issue with it least in my mind is what were the prospects of such a motion being granted the defendant's parents were present if the interview which would be required or at least the interview should occur with their permission it was in his own home a place where one would seem more comfortable than in the police department or in the uncle's home even after the conversation with officer meeks he was not taken into custody so don't we have a problem of whether in fact number one this was even a cuss dodie all interview that officer m tearing this statement whether it's in custody or not it's not about when terry statement doesn't go into evidence even if it's not a custodial situation as to where our argument or belief is that given the circumstances of the case his age his mental condition the fact that he just undergone voluntary state right dr graydon and dr brain moved report came after this conversation with the officer meeks but now looking at that report in considering this motion or whether this motion would have been granted didn't dr braden find that your client was should stay with his parents he was very comfortable with his parents especially his father i think and that it his father served as sort of a an anchor for him and so wouldn't we take that into account even though he had this unfortunate confrontation with his uncle the night before  yes just as the doctor braden indicated that in terms of inpatient services or outpatient services that that the that district on zoloft would be appropriate for outpatient services given that he is still residing at his home  would be the best arrangement for him to benefit from from the counseling services but i'm talking about the actual motion now so your position is that because of what happened the night before this motion it would be hard to find this motion to be voluntary or this state his statements to be voluntary well he's in the presence of his father who we know from a later report but one that we can now consider that he's very comfortable with his father it would be the best place for him pending trial unless they could find in patient services so shouldn't that be factored into what occurred the night before there's no doubt it's his father in his mother would present when he was being questioned by the police he was in his own home those are all factors   one or two questions of the beyond a reasonable doubt the appellant or or your client did in sacks admit to oxer meeks that there had been some inappropriate conduct but he didn't know what was wrong because it had happened to him i think is i'm paraphrasing but it's generally what he said did he indicate how many times he recalled this occurring no judge just as he was not asked nor did he say how many times it happened right so when when we st got this statement from him he was he was sort of offering the information as opposed to answering a specific questions that that's that's accurate  we just said what happened and what kind of a big statement was rendered there was a statement by mr gonzales that he may have acted inappropriately but in the police a police officer that i have goes to both ineffective assistance and beyond a reasonable doubt did trial counsel ever request in writing or otherwise a bill of particulars concerning the times and places of these did that in any way cover the issue of the the breasts of the the time period there was a statement by the defense counsel when it's hard to pinpoint perhaps it was this was after the  hard to pinpoint the exact time frame is what she testified to in the post trial motion but the motion that she filed to be ultimately was not pursued you correct ok and part of this indictment covers august had was a place where some of these events had occurred however the your client's father produced a deed that said that house had been sold eleven months before the dates on this indictment started how does this fit with beyond a reasonable doubt and what the children sa well i don't i don't think in all due respect just as i don't know that that mitigates against events that allegedly occurred within the period of the indictment the fact that there was some evidence that from margot from the army on that the events occurred at the blue house or the old house i don't think that fits within the time period in the indictment not even right now in the end the judge found all the witnesses to be credible particularly the children there i mean if that blue house is sold in two thousand and thirteen i'm sorry in two thousand and twelve and the indictment period doesn't until eleven months later how how does this finding everybody credible make any sense in this case it doesn't justice and it's a comment that i can make on that is that the children gave basically three different versions three different times what happened the number of times the places it happened how it happened who was they were etc if the children credibly testified under oath at the trial then their one last question in a council you did not challenge in your in your brief and i don't believe it was challenge to the trial court the sentence that was imposed in this case taking a six year mandatory and the trial judge actually cutting that in half what a why didn't you challenge that the the state  land justice abridges i have no additional questions thank you just the facts and just as an author you have any questions well just to see you just the such and such did cover the got three pages of questions and  e very kindly was very comprehensive and covers most of them i have just one or two the court did say that i took all case law into account in its decision to transfer and the miller case had been tendered to her isn't that correct it's just so how can we say that the principals and miller and buffer were not taken into account here statute does have the word shall and that indicates that a court in conducting the discretionary transfer hearing shall consider among other things and then list of course the number of factors to release that you request and your brief is that we reverse the decision below to transfer the proceedings to criminal court and or to reverse thank you just as an off i have a few questions count so you know getting to what justice hutchinson was talking about with respect to the blue house let's assume there were inconsistency between n g and b g s trial testimony and they're out of court statements here the trial court made credibility determinations as the fact finder and found their testimony credible what evidence is there before us to enable this court to find their testimony was so improbable or an satisfactory as to create a reasonable doubt of the guilt just as i answered a previous justice questions are don't it happened every weekend but sometimes maybe not every weekend and they're in a mobile home with four adults down the hall and the state's case is that this half children appropriately assaulted  no meriting continue with their motion to suppress defendant's statements because there was no miranda violation and it appeared to be voluntary yet you argue in your brief that defense counsel should have known t then have been traumatized and emotionally drained you talked about the chair and that in your brief the throwing of the chair but there was some time before the officer arrived to in fact have the defend was angry and then there was other testimony the chair was thrown from the chair was thrown they were yelling you know young man that couple gets again just four months later he was on them to stand trial he did have a history according to dr braden of some psychological issues then there's sometimes you know now because it the uncle has left before make arrive where is the evidence i mean you you you know how do you establish there's a reasonable probability that the statement would have been suppressed based upon the fact that we had before u up getting to the sufficiency of the evidence to base upon the case law and force can be established by a number of different factors isn't holding in and pinning one down by the way sufficient to show the use of force to support the charge here the statement by the young man was that he couldn't get away because he was bigger than me there was a statement that he did hold him hold a young man by the waist in my brief i simply made reference to force must be something  factors as well as the potential terms of the senate send as an adult it was argued in front of the lake by the state that these were serious offenses that should subject the defendant e i don't recall her ever talking about you know six to thirty or anything like that or up to three hundred which happens in some of the other cases do you who are you telling us are you trying to tell us that the the concept of serious consequences meets the burden of a set by clarke and morgan that there consequences that he would station and of course i mean facts that's the serious consequences that she might have been talking about and here's the problem i'm having ended up not being the same consequences that were actually imposed how does that work not three and a half years per charge which certainly for a one thousand or twenty year olds is not the best you know it's not what they were hoping for but you know the two judges don't seem to be on the same page is that any that he will go to prison and he could go to prison for six to thirty years she just says serious consequences how does that fit specially the standard set by clark or the the minor had no prior history with the court and had received no services from the court at that point in time she did not feel that he could risk trying to put him through a service is that the juvenile level because he might not comply how is that position or that finding consistent with the statutory considerations here for a transfer and the probation officer was pretty clear that they work with that instrument to determine potential rehabilitation issues is that correct for this case was not on a fast track by any stretch of the imagination with all of the delays because if it is what would have been the harm of ordering  the course of the it seems to be a rather significant issue that ellen oid did not have any facilities inpatient facilities for someone like the minor here because of you know his age at the time of the hearing was there anything that prevented the judge or the probation from looking outside the state of illinois for facilities that would be of assistance to him in the time that was what were ok but that was not pursued in any way is that correct it's going to beyond a reasonable doubt if abuse did occur in the blue house it certainly would be unfortunate and would be tragic but the blue house is was not available for any of this conduct according to the indictment because it was already sold and i don't believe any of the testimony was brought in as prior bad acts or something of that nature so how can was tony at the advocacy center and then you know to his parents again and then in court how what's consistent i need can you point to one issue that's consistent thank you just just has enough do you have any questions just a couple of towns so with regard to the ineffective assistance of counsel argument for not filing a motion to suppress statement isn't the statement of the attorney herself that she didn't want the judge to hear that evidence enough to establish her ineffectiveness in and of itself a discretionary decision the statutory language does say at the end of the list of all of the factors the judge is supposed to consider it says in considering these factors the court shall give greater weight to the seriousness of the alleged offense of minors prior record of delinquency here he had none then to the other factors listed in this  section does that language in any way excuse the absence of the evidence regarding or getting effect the valuation or what treatment would have been available  as me there are the requirements the the court was to consider whether there is a reasonable likelihood the minor can be rehabilitated before the expiration of juvenile court jurisdiction and advantages of treatment within the juvenile justice system etc we've talked about that and talked about how getting a sex or a valuation may have been satisfying and presenting evidence right and do you agree with opposing counsel agree with his answer that with respect to the relief request and if we find that this transfer hearing if we reverse the decision below based on then that he's testimony of sex offender evaluation it seems to me with the tremendous important because if the evaluation found the the defendant to be of a low  have been successfully rehabilitated well in advance and that's the words he used of the juvenile court losing jurisdiction but none was given isn't that an important factor for the court  that the outcome may have been affected going to trial may have been affected had the statement been suppressed that requires taking a look at the evidence without the statement  remember dick as we come in before the children statements were begun inconsistent i would suggest a lot of testimonies improbable every weekend with the with the parents down the hallway just improbable scenario there's no physical of the statements of the children in fact there is evidence in the records that the children each of the children denied any improper conduct markel testified i don't remember when st asked by his father bianca said nothing nothing app she responded to the nurses notes that i've never been forced to do something that i did not want to do so that's the evidence without the state and i question whether that would add up d then to beyond a reasonable doubt secondly there was testimony indeed mr gandhi to testify that his experience was that it could take up to nine months to a sex offender valuation it would be hard for me to believe that that the court couldn't put that on a fast track that was a concern that the criminal conduct during that time in terms of the voluntariness of the statement that was referred to the altercation or the kind of patient you say to us the questioning by the police officer occurred on the same night that the children disclosed the events to the parents it was so it was a basket moving evening of st of all the children talking to the parents then the parents recording the children then the parents going over and then confronted by the the angry uncle there was a time period indeed as referenced earlier between the time that the police that and i also have no for the question so the court thanks both parties for your arguments this morning the case will be taken under advisement and a disposition will be rendered in due course  clerk you may close the case and terminate the proceedings thank you