are good afternoon and man please the court my name is sarah lucy from the office of the state appellate fender on behalf of the apology aims mcquire the principal the penalties will be proportionate to the disproportionate to the crime here mcguire was not terrorizing a neighborhood breaking into a stranger's houses he went into his engine uncle's house put on a change of clothes and took some food while his aunt and uncle did as to press charges they did so without asking for restitution and asking that he not receive prison time the state all of which took points all of which took place your honor and he pleaded guilty to a class two felony stay points out that mcguire continued to use drugs while he was on probation and that's undoubtedly true this was his st time seeing any help with his addiction issues he was only twenty four when he went into his aunts and uncles house he'd never gone to any sort of rehabilitation treatment after the state filed its petition to revoke his probation he successfully completed his st rehabs treatment at smarts in eastern st louis but even so he was unable to quit his addiction issues right away despite his addiction issues his criminal history is not extensive he has one prior felony conviction for residential burglary for which he served four years in prison before that he only had two misdemeanor convictions this is hardly the criminal history of an unbelievable recidivist the trial court had knowledge to this prior felony like this one was due to his ongoing addiction issues we sentencing mcmorris attorney asked for continued probation so the choir could continue receiving addiction treatment this would have been consistent with our legislature's guidelines which do not cut an offender off from drug court after only one field attempt a legislature understood that it diction is an insidious disease the takes multiple tries to overcome in fact a defendant has three tries to go to drug court where only the trial court and the defendant have to agree to the sentence after three times the defendant isn't cut off from drug court they only have to get the prosecutor's permission to get recent times to drug court and that happens even if they fail out of the drug court even if they are unsuccessfully discharged sentencing should be the st goal the st go to for sentencing court the court was not required to give him another chance at drug court and indeed if if drug court is no longer suitable in mcguire's case the statutory minimum which in this case would be three years would have been a more appropriate sentence given the nature of the crime and what was the maximum he was  eligible so it would have been fourteen years that would have been for his only his nd felony and for walking into his absent girl's house even if he want to have their permission to be they are correct he did not have their permission to be so that he could receive probation and he got the probation that they wanted him to get you can in spite of the judge's concerns right he did and you weeks later he's already in violation right he had not yet gone to rehabilitation treatment that is true at that point and he did he did continue to use drugs unfortunately as i said this was his st attempt at getting clean his st opportunity and at the end  you said that before what do you mean by gentle are you suggesting that he could not have made the decision on his all to seek treatment before being involved in the criminal justice system i'm not quite following you he could have sought treatment on his own absolutely he wouldn't have had the resources of this court behind him to help him if he sought treatment on his own but he could have but he also been in court and number of times before and any time he admitted that he had a drug problem that was part of the record at his previous felony however he didn't receive any treatment then he was sentenced to four years in the department of corrections and there's no indication on his pre sentence investigation report that he received any treatment while he was in prison ok i may ask the question again maybe are which clear and any of the previous times he has been sentenced on the various and other offenses for which he's been  could have requested drug treatment as part of his sentence correct i suppose he could have your honor during the two misdemeanors or the prior felony i don't know the record shows that he didn't request it for his prior felony i just simply don't have that record in front of me ok but based purely on this event on the facts of the offense which our constitution states should be the foundation of the sentence that he receives at most a prison sentence of six years would be appropriate that would be in line with the trial court's sentencing scheme which is called progressive sentencing where the st department of corrections sentences four years and each sentence there after that means that you can't go from four years in year there's nothing in the sentencing that says you can't go from a four year to a nine year nor do i mean to imply that there is i mean to say that the sentence imposed even when if it's within the statutory range which nine years it is it's still excessive if it's manifestly disproportionate to the nature of the offen so well there is nothing in the sentencing guidelines that precludes the court from going from four to nine years the court is still under still has to consider the actual underlying offense even if it decides that the conduct on probation might somewhat and what it would have given in the st place so in this case we see you know if drug court on the st time that he was in front of this court for sentencing and then decided that a prison sentence was appropriate and recent and saying the sentence omri sentencing still has to comply with the constitutional mandate that it be proportionate to the underlying offense is like you're relying quite heavily on the fact that well he committed this crime against family and they didn't want him to go to prison are we should the judge have considered that not under every circumstance your honor i think here it's appropriate given the facts i don't see that it would be appropriate in every case but here walking in without causing any property damage without breaking a don't you think that the judge when you read the judge's comments in the record don't you think that he was particularly disturbed and concerned about the life threatening behavior so threatening behavior the defendant was in gauging by drinking bleach in order to hide his drug results and that perhaps part of the motivation for the sentence was because this guy had gone so far off the deep in maintaining his drug because now he's already been to prison was that didn't stop anything he's been given probation all me what would have otherwise been a mandatory prison sentence that didn't stop anything he's done his thirty days at his smart program which obviously didn't do and then you reduce his level of tolerance so it can get higher faster with less drugs and now he's facing another violation because now he's been diluted or he's been something to alter the urine sample and when the judge found out that he was drinking bleach that seemed to be of particular concern to the judge by my question is it seemed to me that the judge's concern and the reason for the sentence was more for the protection of the defendant than what you call an excessive sentence because he clearly was not going to stop what i would find prison will not actually help mcguire with addiction issue if the problem is the addiction and part of the addiction is very leech then surely the primary concern should be to get him off of his drug addiction the judge can't do that now all you can do is try to do something to put something in his way to maybe keep the guy a lock because he's on his own engaging in his own self destructive behavior to a point where now he's consuming bleach on a fairly regularly bathe regular basis in order to hide these drum chips now and using your logic nobody who has a drug problem should ever go to prison because there is the possibility that there are drugs he proves i'm not sure that we want to go to court they're certainly not that far your honor and well i agree with you that the judge cannot the spark the desire to give up drugs in mcquire what we can do is put defendants in the best position to seek that treatment so simply locking them away for greater and greater increments of time might not necessarily do the trick and goes against the legislature are addiction remedies to stick rather you know it's not the st time you go into treatments and you walk away forever from ever doing drugs so i think acknowledging that the department of correction might in the future commit a property crime but then admitted that he would also have access to drugs in prison so while urging mcguire to fix the underlying problem the court sentenced him to a place where he would have to accept wrote limited access to treatments and when the wire recognizes that he did not raise the issue in front of the truck court he asked the court to review the error either i'm missing the the connection between those two factors the relatives are shocked what were they got to do with the judge's assessment of whether that was an appropriate sentence or not it shows that counsel was in affective for not filing a motion years to the statutory minimum of three or brought down by three years to the state's recommended six years department of corrections so as such for the offense of  these reasons mr mcguire asked the porch to reduce the sentence either to three years the statutory minimum is the state's recommendation thank you thank you counsel mr service you marry m issues that defendant raises in this case being the sentence and his effectiveness of his counsel's representation the st being that and not one sentence was not manifest a disproportionate to the nature of defendant's criminal actions and fatality of the circumstances of the case that was presented before the court so as justice simon specifically noted the central question about this case is whether or not when it comes to the sentence as whether or not the truck court's decision about the criminal nature of his criminal acts the nature of his particular charge and the sets just charged him with burglary to allow him to address these drug issues and was given probation and then immediately once he received probation he began assisting other people in defrauding the drug testing process that was  as i wanted to make sure that this court was aware of this was a new kind of drive by analysis of defendants history this was a long and final process by the judge explaining why he thought this particular defendant would continue to use drugs we continue to use drugs and commit crimes based on his drug addiction and that all the evidence in the record up till date has shown that he has refused to address that treatment absent the short stint in the outpatient of the defendant noted the defendant may disagree with the trial court's long and detailed factual findings about this that doesn't make them one reasonable that doesn't make them arbitrary or doesn't make them lacking in conscientious judgment which is what the abuse of discretion standard demands for a reversal on these kind of grounds and you are as i think that if we put all if we pulled off three of the judges on this panel blind and ask them what sentence they would give this defendant you would end up with three different answers we put one hundred others in the room we can end up with a one hundred different answers as to how many years this defendant could have should have gotten for the criminal offense but that's not the standard is whether or not there could be a disagreement the question is whether or not this is manifestly unreasonable and the court may detail findings explaining its thinking and then of those findings were based on the reasonable or arbitrary basis there based on the court's experience with this defendant reviewing the record explaining the facts and making a determination that that sen probation though one the one hand being that defendant here pled to the burglary and receive probation from this particular judge but that also when the judge made that probation terminations specifically let the judge the defendant know that the defendant's particular facts and indicates that unless the court determines extraordinary circumstances exist that the defendant has to serve a period of incarceration that is a very different statement as to the nature of the criminal offense of what it was in that case a reckless homicide based on  then when the court didn't hear the court it was speaking directly about what defendant circumstances were in letting defendant know that based on what his kernel history was his problems with addiction his criminal offense that he would receive prison time if you valid his probation i like to just make t hearing proved to be aggravating factors that the court ultimately found with the exception of the one mitigating factor that his action in this case didn't threaten our and lastly regarding that the report the defendant cites in their brief which they say on apply is traditionally noticeable the issue with the report is not the fact that it's not sufficiently noticeable the issue is that it is unfair to impeach the trial court's decision based on a report that the trial court never heard it's not fair for us to render a decision based on the saying that some court was on reasonable based on a report and never got to hear an argument that it never encountered the trial court level so the reason that the states it's a shoe in that report is that it simply presents issues at the school that court never got to hear an argument that was never presented at that time if there's no questions on this particular issue i'll just move on to the insipid miss claim defense counsel effectively is this enduring sentence saying nothing in the record establishes the defense counsel didn't consult with defendant regarding the petition and in fact defense counsel in the brief specifically says that everything appears as if that is the case rather than the fact of affirmatively establishing that and just a statement i think your work on some of the opinions you've written regarding postcondition petitions versus direct appeals and addressing ineffective assistance of counsel kind of goes to this kind of claim where this is the kind of claim that needs to be brought in a post conviction because it goes to discussions that could not be on the record because they were between counsel and his attorney  carrying them at this level would require us to infer facts that simply cannot be presented in the record so if define it wants to challenge his he might have a viable claim as to whether or not is attorney effectively assisted him he should f  does not comport with that that this particular case because in that case the defendant specifically said even during the sentencing hearing that he wanted to appeal and immediately after the th has rendered the attorney asked me just charged at the didn't forfeit its argument regarding the effectiveness of defendant's counsel regarding not filing a petition because pages twenty five and twenty six of our brief we discussed the lack of predators the defendant experienced as a result of not following the motion the state  want to reiterate he's currently serving a six year sentence in the department of corrections so for him to be punished again not only in that prison sentence and that felony conviction but then again during this one would be to punish him for the twice for the same crime and nd i want to bring to the court's attention drawing in its response brief the state quoted people the palmer for the principle that it's this court found for who conducts himself poorly on probation to get a harsher sentence and while that is true this court also wrote that on revoking the defendant's probation the trial court sentences him to a disposition that would have been appropriate for the original fence so through the state's argument i just don't want to lose sight of the fact that the original offense simply wasn't proportionate to a nine year sentence in this case and to the ineffective assistance of counsel i would only say that much like can people be zero ins where trial counsel asked to be taken off the case at the sentencing hearing here we have a bill from the attorney that was filed the same day as the sentencing hearing that shows that the last thing he did was the sentencing hearing there was no other meeting after that which to to think that an attorney who's working on the behalf of the court but not pro bono wouldn't submit