the freedom that they need in order to make sense the specifics of the crimes committed this whimsically in your brief i think was in the reply brief you you made the statement that the judge said that he would have convicted him of second degree that in saying that that necessarily meant that he found after observing the complaining witness testified that there was some sort of mitigating factor present was a statute that said that there was an attempt second degree murder but when he said that he was accurate was any way he said that at the time i mean i know that this was shortly after the statute that you're relying on can't show that at the time that there was that he was acting under a sudden and sense of passion that that will give the judiciary the the freedom to sit in the defendant as if they he had committed a second degree murder but let's let's talk second degree murder i want you to tell me if you can or how would you how would you distinguish the two cases that are relied on by the state and this is going to the pressures from the two cases the one involving the a bus driver where the passenger gets on and has some kind of a disagreement it's really not clear for sure but at some point you know that the the two of them move off the bus there's testimony that case the second case is the one where the defendant said he was approached by the victim with a rollerskate and in response is he stabbed the your theory as to what additional to the mutual combat wrong or your to rely first of all the only thing that we're asking for is for this matter to be sent back where we sense in hearing if that's the cause for that particular or those particular piece of evidence to be put on that since it's now a bit but the issue is what wasn't raised under the under the prejudice pran short of strickland there has to be some prejudicial impact for there to be a prejudicial impact there has to be some undercutting of the reliability of the outcome without asking for that which necessitates showing how things could have or would have been different sure with it so in order to get there you have to tell us why or under what theory it would have occurred that it would be entitled to the possible reduction under second degree now we surmise that the mutual combat is is the one you were lying on court definitively found that there were credibility issues with this particular witness this particular witness complaining witness stated that it participated in a game for eighteen years two years after that he under this mitigating circumstance ok in this case if there was you know if this were a murder and the men were trying to get a second degree instruction there would have to be some evidence and used in the rules however slight ok right now i'm asking you in this case how do you distinguish the those two other cases because the facts are yeah he might have been a gang member let's assume it was a gang but he was the facts that we are are left with are that this defendant first pushed the other person to the ground then the victim punched this defendant in the shop and then the defendant pulls out a gun there's no testimony that he thought the other guy was armed or that he had gone leg once in the right leg then the victim turns around to avoid being what he said shot in the heart and he struck in the back with the bullets the question i have for you is how do you distinguish those cases to show that in this instance that there was of some mitigation because he fires a gun you know multiple times how is that not out of proportion to being punched in the jock and once the the the facts are hearing important when it comes to this particular defendant that defending the complaining witness is the only person who gave testimony which  ns what actually happened at the point that the shooting occurred and if this particular witness says that the defendant pushed someone down and that the defendant he  under the or conditional yes it has to be as a as a reasonable belief probably depend not be it has to be serious violation so here all of the testimony which deals with the provocation comes from the complaining witness and it's important that the trial judges fire  that at this particular point when the evidence was being placed there was no reason for defense counsel to do felt this particular facts develop this particular whether or not there was mutual combat at this particular point the fist also  defense was that it was either self defense or misidentification at sensing after the new year that would have been the point the defense counsel would have put in evidence pertaining to whether or not there was serious provocation and here with you think the evidence suggested that trial self defense yes i believe it did the the defendant was struck by a person who says that the defendant was anywhere between five seven whereas he said it that he was six second degree there should be no add on as well and the plain language of it of the new this is an attempt to second degree the because the the scream court has said that in even the way the statute is written in in subsection e it doesn't call it attempted second degree it calls a first attempt first degree with a mitigating factor yes but that language nearest the second degree murder statute this it  at sentencing to do the last last act less does this sentencing vision change the offense so that under your theory if to give another sentence which is more which is more indicative of the actual crime that was committed so i'm kind of putting now two things into the statute you're saying if someone is found guilty of attempted murder at this circumstance as if it were really what the supreme court says doesn't exist in the thames second degree and would give the states the opportunity to think he gave the contrary position that what he gives in terms of the  left for courts to do it unless and until the legislature redrafts this is to try to define their meaning from the statute so i disagree with the i respectfully however that is not with it should it should work in your favor and also this is not something that would be decided right now at this particular point the only thing for you is whether or not the first outfit was ineffective for not bringing this to and you get back to the fact that whether or not this was serious provocation yes and in this particular matter it's important to understand that the complaining witness is the person who put in the testimony that he was not our this is a person who committed  defense and you know having been there myself it's really hard to say i wasn't there and if i was there i was acting in self defense and it was but but even assuming somebody gets over that logical inconsistency and questionable tactical decision there would have been an incentive to have somebody might have information on the fact that this person was testify which is support his testimony that the trial court was in the was a trifecta in a much better position to witness the demeanor of this particular witness since i make those type of credibility determination and so we are stuck but the words that came out of the judge's mouth are i truly wish there was a crime called attempted second degree murder from that you would strap away the missing second sentence which is if there were i would have only convicted you of that that i understand why you're making that argument but you for your were selling it in the sense that he never said that but then he goes on to say that he wished that the legislature and given him the disc the freedom so that he could acts if he had the freedom but he wouldn't have given them the dish no thirty twenty five so he says it would have been somewhere between six and presumably thirty without the mandatory twenty five year add up that's the most that i think can reasonably read you right into what the judge will say that is one particular way of looking at it but still stuck with the fact that they just did make this particular statement in the very beginning that he wished that he could have that there was a bright prospect but really he said that he's not really ignorant and he's not making he's not misstating anything because this statute didn't change the fact that attempt second degree doesn't exist as we speak right now he was writing about the fifteen twenty to twenty five year at that is you don't invent ways crippling judges and that's what it was right i just don't see him making any you know i don't think he's saying anything that isn't accurate but you know it does certainly appear that maybe parodies were not for about this think you have to develop that from the record i don't think you can tell us now well if we go back the defendant will testify and he will say this or we'll call this witness i mean i do think you have to show us the prejudice now we can before who said that this particular individual was selling drugs that he had you know that doesn't let you pull out a gun and actually take some time have it misfired twice and shoot him in one like shoot him in the other shoot in the back and he gets shot in the legs and instead of sort of firing back you just heard his body around doesn't that suggest pretty strongly circumstantially that the man didn't have a weapon because wouldn't a reasonable response at that person said oh someone gave you a gun i didn't fire that doesn't seem like a statement that someone would make who's not armed who's in fear or who is you know i mean i don't know how you're going from that to he has done now but anyway these facts these facts don't show that that the retaliation was warrington now there's something else i think that you  this occurred in december before this new session was even inactive so there was no reason for any of the parties to address this particular issue at all but yet courts in their own way  something else world and this particular ad sense is that right has made a finding that the defendant actually shot the complaining witness and he can well you can shoot someone without intending to kill them mitigating factor they argue self defense possibly yana but if it's if you're arguing self defense is an implicit in that it's not the lesser standard to show serious acquitted of the charge because there is no specific intent if someone is acting on a self defense serious publication is something entirely different given the facts of this case and this crime was the four deference to a tryout trial coun if the defendant so choose at the sentencing hearing where he would present this not testimony and the state could present this not testimony and the judge would then make a decision based on the preponderance of the evidence as to whether you could having chosen not to testify for example at the trial or chosen not to present certain witnesses as to the guilt or innocence for tactical reasons then either defendant could testify or they could bring in additional witnesses who they chose not to put out of the trial or a poll to try to prove by a preponderance of the evidence the second intense passion based upon a series provocation couldn't that happen now kind of a bit unfair that everybody apparently at the time of sentencing was probably operating under that no one knew about this newly necessarily aware of this provision that's certainly possible yana but given the facts in this case hypothetically speaking even if defendant one allowed to speak with the court and to make spelling allegations regarding you know there were presented at trial given the fact that his response to receiving a single punch the job was to take a firearm to pull it out so fire a weapon a total of five times striking the victim three times about the body and as justice epstein points out there was absolutely no testimony that there was any that the victim was armed there was no testimony that the victim even tried to break the firearm from here you know is the proverbial you know devil's advocate i mean in this particular case what is the harm of a remake and where the defendant and the state get an opportunity to address this particular sentencing provision when it is obvious that the trial judge did not want to be bound by the fifteen twenty twenty five year add on and that certainly is clear from this record and others where the court's the minimum sentence for murder involving a handgun where the defendant personally discharges that weapon is forty five right off the bat forty five twenty years ago it was twenty years and people were released after eleven i mean things have changed no doubt and one of the changes is this fifteen to twenty to twenty five year after so isn't it a bit unfair to say well maybe we should send this back for email and for the court to consider the statute that wasn't considered because the lawyer obviously didn't know about it and at that time if the defendant is able to show by a preponderance which is totally different then the burden of proof a trial then perhaps the sentence should be fashioned more along the lines of what the judge said just that well you're honest the people's position every man in this case is not necessary because the fed has raised a claim ineffective assistance of counsel and in order to raise a viable claim he has to show prejudice here the law of the law on serious provocation so even if this quite a rematch based on these facts in this case as a matter of raw there could be no finding of serious complication in this case hearing is in error and we've already established that they haven't told us in the legislature what the procedure should be at the sentencing hearing for example at the sentencing hearing the state introduces evidence for example defendant's record and his behavior sometimes in the penitentiary or other things like that they are entitled to bring witnesses in sentencing hearing introduce new evidence that would act in aggravation and the defendant in sentencing hearings in general is allowed to present witnesses and present arguments and additional evidence in mitigation and if you are wrong there for some reason this statute that contemplates a burden of proof to the to the defendant to prove something by preponderance of the evidence actually allows him to introduce additional evidence isn't it true then under those circumstances that we're not stuck with the record that was the stablished after the trial but merely the opportunity exists a sentencing hearing for the defendant to try to whom the mitigation and for the state to try to disprove it and there would be then an additional universe of facts of a horrible for the sentencing judge to make the determination that subsection he requires which is whether there does or does not exist by a preponderance of the evidence that mitigation yana how i possibly missed out the people are not conceding that if this case remanded defendant we will be able to present a different set of facts i understand your honest argument that in because you're different from any other aggravation or mitigation argument in any other criminal case in the state of illinois  somehow at this sentencing hearing for that purpose there would be no opportunity to present additional mitigation well you know generally when defense counsel is presenting mitigating evidence in a sentencing hearing and even when the state is presenting aggravating ev completely outside the facts of this case and if you have the right to keep bringing extraneous information you're reading this to say but when you bring in something absolutely pertinent to an issue that set up by subsection case he said that the judge's finding of fact at the trial would be determinative of that big because the legislature has decided that in order to reconcile the problem in situations where generally  lopez the court explicitly stated that there is no attempt second degree murder style defendant could never be tried under a ten second degree murder so in order to rectify some to reconcile that issue they allow for a mitigating circumstance a showing of serious so allowed to finish conviction in attempt first degree murder to be reduced from class x the class one that is not me that drawing a sense then here defendant now has the opportunity to present additional facts when he had the opportunity and trial this question isn't before us but i i somehow then the court is not or would not be required to impose the and i know that is not the people's position as argued in the people's brief as and  and it is reasonable to make the surface because the trial court did not either and there would be no strategic reason not to give the court that particular of information when the differences in sentences were for fifteen years as opposed to thirty one a lie which is a sixteen year difference betty that is not cross ratatouille here furthermore when it comes to whether or not the newly enacted statue would allow for new evidence to be submitted i think that's very clear because there is no situation where usual combat would have he effect one a conviction for first attempt to prove murder so so in this particular instance defense counsel would not really be able to put on any evidence of mutual combat if this theory of defense is mis i didn't for cation or self defense the statute necessarily states that if a defendant has shown at sentencing whether or not that there was severe publication i think that's pretty clear that new evidence could be submitted at this particular hearing and furthermore this is a case where i think that the b