it please the court joan christie from the state's attorney's appellate prosecutor on behalf of the people of the state of illinois counsel the people come before this court and are asking you to do two things t court this case to the appellate court with instructions for it to vacate the relief it grant of the defendants and to reinstate the judgment of the circuit court of lake county we are also asking this court not exercise its supervisory authority the defendants were convicted of theft over one hundred thousand dollars from their employer abbott laboratories their appellate counsel timely filed the notice of appeal and timely filed a brief in their case in the brief that he filed he raised one issue whether or not the defendants had been convicted beyond a reasonable doubt defendant's counsel however failed to make a complete record on appeal and all of the documents missing from the record where the transcript of the court's ruling from the bench in any post trial motions therefore the appellate court had none of the appellate court followed the longstanding principle of this court which can be found in file which verses o'brian that when a record is deficient the court must affirm presuming that the trial court ruled correctly and that is what the second district did on direct appeal they affirm the convictions and in their rule twenty three order they expressed this reasoning for the if from it's of the convictions a case is not adjudicated on the merits in only two instances when an appeal is not perfected or when it's perfected but it's dismissed for want of prosecution those defendants never get their feet inside the door of the appellate process but these defendants had their feet firmly in the door and went up and down the appellate process seeking review of their case and they had the full panoply of relief available to them and they have availed themselves  they filed a petition for rehearing with the appellate court denied they came up here filed the petition for leave to appeal it was denied they then went back down to the circuit court and filed a petition pursuant to the post conviction hearing act because their case had been adjudicated on the merits they had only one avenue available to them to present their case on post conviction they had approval of both prongs of stric washington they had to come in and say but for the fact that our public counsel failed to make a complete record on appeal there would have been a reasonable probability that we would have prevailed on that appeal that's the line of cases that come from pharaoh and company year zero and hightower the defendants instead follow line of cases from thomas and swanson and program does which say in the case not  adjudicate excuse me in a case not adjudicated on the merits there is prissie ineffective assistance of counsel and prejudice is presumed but they've they should not have fall of that line of reasoning because they didn't fall underneath it because their case had been a ed on the merits nevertheless the post conviction court adjudicated it as they had presented there are human and found that they had indeed received the ineffective assistance of counsel and no one contests this is clear that the council's ineffective for failing to make the record however the court and therefore and they also said and prejudice is presumed that we certainly don't agree with so then what was left the post conviction petition had been granted all that was left for the prayers for relief in their prayers for relief or something that the post conviction court simply could not grant the two main ones that they asked were one that the post conviction court should order the appellate court to reinstate their direct appeal in the post conviction course of we can't do that i can't do that and then they came back and said well then let's file a late notice of appeal now that requests came from the on appeal to the appellate court again and they did not raise as an issue either the denial of their prayers for relief nor did they raise the issue that perhaps they had received un reasonable assistance of p c counsel instead they just filed a brief where they reiterated their argument under rect appeal that they had nothing proven guilty beyond a reasonable doubt what the second district was looked at the case and said wait there was an adverse ruling below and the adverse ruling below was to your prayers for relief we're going to examine that to determine if those were appropriate rulings even though the defendant had not asked for it they were looking at the jurisdiction issue and we don't have a problem with that and the and the appellate court came back and said the post conviction court ruled correctly in denying the relief that you requested could not have been granted and the and the appellate court also said opinion they had no authority to do anything else to remand the case to or issue any kind of relief because there was nothing left for them to a on come by heroin hightower that wasn't how it would have proceeded having done it correctly and i argued both prongs of strickland the scenario would have been they come up to the court the argument is made but college counsels have made a complete record on appeal there's a reasonable probability we would have prevailed and direct appeal then the p c court rules whoever would have been on the losing end of that ruling would have appealed to the court and what would have come up to the appellate court would have been the question of reasonable doubt that's how they should have gotten very direct appeal reinstated as they put it if you don't remember it's already been  in the way they had advocated and they can't have a late notice of appeal they were never late they fought timely filed a notice of appeal they timely filed their briefs they timely filed every petition all up and down the the appellate counsel failed to file the nose for appeal or failed to file a brief i believe what comes up and i believe the scenario would be this it would come up to the appellate court there would be this per se ineffectiveness there would be prejudice presume because there is nothing to adjudicate because there was never was an appeal for there was never a brief filed there's no legal issue presented at that point the court would make a ruling the defendant would have to say we want our case reinstated r p our direct appeal being stated well again the p c court doesn't have the tools to do this they would have to deny that relief then they would other cases another just so they can't so that's our question but their case is not the scenario before you because back scenario only apply i can give you my opinion on my humble opinion on that but that's not the issue before you the issue before you has to do with the these defendants follow the correct line of reasoning which applied to people whose cases had been adjudicated on the merits the answer is no they don't not don't you yes and no in this case in this case they could have had it adjudicated first of all their appeal was adjudicated and if this court is finding that it wants to go two things first of all the trial transcript was before the post conviction court they failed however to prove up the second prong of strickland when they were before the post conviction court so they'd they have is now the whole issue of ineffective assistance of counsel it actually is race to dakota they were the protection was granted they ruled that this man was ineffective there's no question anyone  court on the first go around on direct appeal of either and direct appeal no the appeal that was that is the basis underlying appeal to this case sure they had it but they ruled that their jurisdiction only extended to deter and i think properly so only extended to whether or not the post conviction court had properly denied their prayer for relief so they did not but couldn't the defendants pittsburgher and the post conviction statute hearing x t s say very specifically if you don't raise it in your initial post conviction petition it's waved it's gone it becomes very stupid have these people and going back to you just as to your question should there be an evaluation there could have been they have the opportunity to do it right in the post conviction court but if  use your supervisory authority in this court to try and remedy this wrong please look at who these people are using as an attorney they're using the same man who created the problem in the first place they ineffectiveness so that brings up an interesting question were journalists do the same if the defendant had public defender and the public defender had done the law the same scenario but he had appointed he proceeded on post trial motions then he came and and he had the opportunity at that point to get rid of his counsel and hire somebody else or ask for appointed counsel but he didn't do it and this current said look we can't intervene in the attorney client relationship and if you want to retain this person who you are now coming up and saying is an effect of that's your business but you're there really the prisons are coming up with clean hands and these defendants aren't coming up with clean hands either they're using the same man who had made all these mistakes to come up until now give us another bite at the apple and our observations and also you can speculate why we have money maybe trying to help him out you know you can speculate say but but but this killer maybe let's say it is for the purpose of money and let's say the they ran out of money and the man said i'll do it for free but again we are speculating and this is not part of the record of this case all we know is this man the he clearly created the problem for them on appeal they see these people are not incarcerated they will never be incarcerated they've had the wherewithal to retain other counsel if it were a matter of money and then they have the choice of coming before the court and saying we're indigent please appoint counsel they have that opportunity so if they chose to read they don't they have a choice even if they are indigent at which point opportunity to rectify it and post conviction what i would like to remind the court is that once you get in the poorhouse and then the post convict he did it wrong is post conviction counsel the way to have done it was to say was my case adjudicated on the merits yes or no in this case it clearly was adjudicated on the merits if you read the case law it tells you when a case is not adjudicated on the merits so they had only one way they could proceed they should have argued both prongs to strickland and they skirted their burden of coming  improving up the second strong promise strickland and when they messed it when it was not done properly and post conviction now we're not looking at ineffective assistance of counsel and something of constitutional magnitude you were looking merely at an reasonable assistance of counsel and issue which i'd like to remind you they didn't even bother to raise when they came up to the public court and therefore that is restricted how today it's a wave and i know you gave it an attempt to answer the question but back to the fact that there are if this court at some point was to decide that the post conviction court could grant a late notice of appeal in cases in which there is a finding in their post conviction court that there was ineffective assistance of appellate counsel and we say in those circumstances you can send it back to the appellate court for a filing of a late notice of appeal is it your recourse then in the under the district that was exactly the case that there were cases there were cases that said that the post conviction court could allow a late notice of appeal in cases in which they found ineffective assistance of appellate counsel that was the status of the law when the petition was filed by the time the case got to the appellate court the status of the law in the second district had changed and that's why they fashioned this remedy because they felt it was unfair to hold this particular defendant to to this you see where i'm going to yes but justice o'malley made a mistake in his reasoning to get to that point what he said was that avenue of relief was available because there was a in the district as to how to proceed whether one comes in and argues a second trial strickland or one just comes in and says prejudice is rosella ok now that we're on the same page let's throw all that out the window and say there's a pronouncement from this court that says late notice most likely as to whether they can do how does that affect your case i think you had can only do that if i followed if i followed justice so now his reasoning about the late notice of appeal in his opinion i don't care about his opinion i'm saying that one district says yes late notice of appeal from the post conviction court one district says no split in the district this court for purposes of argument i don't know which way the cord will this court comes down and says well his conviction court can fashion that remedy if they if they have a post conviction petition in front of them for ineffective assistance of appellate counsel and they can we say they can fashion a remedy grant relief of a let filing of a late notice of appeal merits it came up through the appellate process and it doesn't affect us if you are to do it in cases where the people never got their foot in the door of the appellate process my opinion is that i think then you have to revise the supreme court rules of who's going to a lot ok what is the key to the post conviction court's ok well in this case we disagree we feel that the fact that there was never briefs filed or whatever you know that the facts versus the brian argument we feel that that is where appellate counsel was ineffective that that this particular defendant although you talk about gaining their foot in the door really never had a right to an appeal in this case because of the ineffective assistance of a poet counsel and says file a new a late notice of appeal i'd like to try this again i know you disagree i know you disagree that the post conviction court would do that but if we say they can do that recall i can't remember exactly then i think you have to come you have to change the supreme court rule of how it's going to be allowed a late a late notice of appeal is going to be allowed but i don't think it again it doesn't affect this case b it appears in this situation that the state through the appellate prosecutor's office and the attorney general's office is in a hurry to foreclose all legal avenues of relief to sandra his they were charged with theft as employees of abbott in lake county illinois they set up a company to perform elevator repairs at the abbot the syllabi they knew when they set up this company that they were in violation of the handbook or rules and regulations governing employee conduct at abbott by establishing this company to then contract work with abbott even though they were  they were charged with theft for the work that was done by this company to perform elevator repairs at abbott it is clear from reviewing the record that all of the elevator repairs that they contracted with abbott to perform were actually performed the only thing that's clear is that they violated abbott's own internal rules when they set up this company to do so but there was a bidding process that resulted in them getting this business for this company that they had set up and then the elevator repairs went ahead and they were performed so the trial court had a very very difficult time establishing reasonable establishing that the stated proving their burden beyond a reasonable doubt in this case three of the counts were dismissed one of the counts of conviction was entered and the remaining count the theft also a conviction was entering a sentence was crafted but only as to that account that count it is it is very clear from reviewing judge mccoskey as ruling at the trial level that at best there was only circumstantial evidence so clearly in this situation we started out with a very closely balanced situation there was not an overwhelming amount of evidence produced the trial court judge had a very difficult time finding that the burden was matt and only only really was able to use some circumstantial evidence in doing so he could find no authority in illinois for his finding to rely on the fact to rely on his finding that theft was established and had to go outside of our jurisdiction to kansas to find some law that he believed applied and so it is with that that the appeal was made here is where we find that the issues that are before you this is that is correct it is merely a portion of the record it happened to be the record those probably the most relevant part of the record for purposes of consideration of the appeal but that was the part of the record that was not and so while the argument is made that the merits of the case have been decided it's really hard as we take a step back to say that that's correct when the appellate court never was able to review the meritorious arguments that were being made in this closely balance case and procedural avenues have been for close to the defendants to the point that we find ourselves today and if the state has their way there will be no more procedural recourse to these two defendants and they will have never had the arguments that they wish to present to the appellate court presented to the appellate court for review so when we present to you your honors that we believe fundamental fairness is activated in this situation it is because and this is the only case that we have with these defendants they cannot be said to have been the risks on the receiving end of fundamental fairness or substantive due process when the arguments that they wish to present they were unable to present they were never considered and there is procedure that would allow for consideration and i understand justice thomas your concerns and your wish to resolve some issues here that exist in the state or in the districts but there do appear even if you didn't change the law in this particular case recourse that would allow your supervisory power to be utilized to allow a direct appeal to be filed for these two defendants because i'm prejudiced tast we would argue is clearly in that the reviewing the trial level found that there was ineffectiveness and that is per se cause the prejudice clearly resulted in the defendants not having any procedural recourse and never having an appellate review of their meritorious arguments this is the state has indicated that there may not have been jurisdiction for the appellate court in their brief and we clearly find you believe that there was jurisdiction for the appellate court to take the case review it as two of the push for relief that were requested word tonight there is precedent for allowing reinstatement of their appeals you know the law better than we do but the defendants took reasonable steps to c but i think the debate is now is whether the whether a p c that does not allege facts that produce prejudice on the second prong of strickland is not going to give you the give you an avenue to the relief that we do believe the prejudice is very clear that as a result of this ineffectiveness and the failure to i'm sorry under go ahead without you know of course whenever we enter order an opinion there's something to do with our supervisory authority but i part of the argument is here is we should not step outside of this difficult factual situation and solve it simply by issuing a supervisory order granting these defendants an appeal in the second district and the arguments made against let's assume for a moment that we agree with that analysis we may or may not as may she finds out but what is the mechanism you propose at this point other than just a great grant of grace from the supreme court that you would ask us to follow to get to where you want to go in the larger context not just for these defendants but for one others and you all you can deal with are these defendants and these defendants are unique because of the fact that they did file a proper notice of appeal and they did go to the appellate court and their appeal was heard and ruled upon albeit missing and in an essential piece of the record but what what is the relief that used that you craft for your clients at this point given that again i i understand where he's coming from in certainly you know that with the spread that exists i think he was trying to help out these particular defendants whether he took sympathy with their predicament or not there does exist relating to the original claim which were not part of the original appellate record so all of the factors that allow for the relaxation of race judicata exists here in abundance and that's why we do believe that even if you were just taking the case of these two defendants there would be room for you to allow them their request court opinion of the post conviction says that specifically with directions to the trial court to permit defendants to file post conviction of titian's requesting relief that's allowed under section one twenty two then be in a position to review part of the record that they did not have an opportunity to with you clearly we would wish that that were the case justice freeman because that is such an integral part of the issue here would rather than give  absolutely i think we could in the interest of just show kind of whatever interest your honor proposes that it could be very limited to that but when i think in the interest of justice we'd like to take another look at what the and the changes in the law that may have occurred between now and then to present a full appeal but if the remedy that you craft is limited to merely presenting the record then that would be certainly sufficient in our eyes as as the defendants because we are just asking for an opportunity to be heard on the merits of the arguments i think without an order from your honor permitting it from this court permitting that i think we would be because there had been a would have been an adverse rule or would have been a ruling already on the post conviction and there wouldn't be any remedy that we could request court and tell them that they have to vacate the relief i know that we argued in our briefs that they could not file success of house conviction petition i think that may be in error after further discussion state the people believe that they they can they can final one on their own i don't think there's anything in the p c post conviction haring act that precludes them for doing it but we do believe they have to prove both the cause and prejudice argue the second prong of strickland that's what causes their foreclosure from all legal avenues of relief they they foreclose themselves by not doing it correctly and then they would have had a direct avenue to appealed the ruling and then it would have come right up to the appellate court and then would have been there as to the record the records complete now well the record is complete as to what went on a trial when the defendants came up on the appeal below this one they still failed to make a complete record because the original ruling on the post conviction court is not in there all we have is the ruling from the people's motion to reconsider the grant of the petition so even the initial they still didn't get it right when they came up on appeal again they still didn't make a complete record so there that is part of the problem but to to even remain on this court with this case with an order for the appellate court  to be given a full record on appeal when it came up on appeal that record was complete as to the missing ruling from the bench in the trial court if you were to create any relief i don't believe you should be creating decided in any meaningful way and that is whether or not these people lost there were lost their their appeal because their lawyer failed to give a transcript that that supported the only argument they were that were was being made before the appellate or didn't support or was the really the problem that i understand that the problem that i have with the sympathy toward the defendants is that let's say  it's it's not necessarily always these defendants whenever we make a ruling were affected anybody else who finds them in the same predicament fortunate boat there it's true and the whatever it may be there is a little a little way to the claim for fundamental fairness i did not at this point there is no fundamental fairness because now we're dealing with the unreasonable assistance of p c counsel and that is not of constitutional magnitude and that's the problem appeal they file it you're going to file across appeal indicating that post conviction at the post conviction for it was wrong and even finding that there was ineffective assistance of a counsel because the prejudice prong was implied and then consequently as a result of that the appeal should be dismissed so a ruling by this court that would allow the post conviction court to fashion that relief does affect your brief you could argue you could argue that the fact is that the late notice of it where you can file a motion to dismiss the appeal right we could but then why can't we effect this same remedy that you're creating first of all this is just sending a pic no see it's like justice fitzgerald said we have bigger issues we have bigger issues not more important issues than the people involved the people and the defendants in this case but bigger issues because we have a conflict as to whether the post conviction court can do that but when we get to your case specifically you keep saying and rightfully so you could say in the remedy fashion by the second district is it goes back down to the p c court well now you've got an issue of the p c council being ineffective and therefore now we're now i don't know longer dealing with reasonable you know we're only dealing with reasonable representation and and i'm saying that if we look at it from the get go of what the post conviction court could have done in this case it does affect your case doesn't mean you wouldn't be hearing now because there would have been a notice late notice of appeal filed in the appellate court and as you correctly point out that rather than across a bill you would file a motion to dismiss based on effect of post conviction court botched up the whole stricklin analysis because the prejudice prong wasn't met if you are going to allow late notices of appeal as the supreme court rule stands now they can only be allowed within a six month period of time this current years after the ruling from the how could th with i mean we're talking apples and oranges now we're not we're not talking about the first finally minute direct appeal we're talking about remedies that can or cannot be fashioned by the post conviction or upon a post conviction petition alleging ineffective assistance of a public counsel that's not going to be done within six months of the direct appeal so i think we're you know we're talking about apples and oranges here and i don't know what i don't think anybody sitting here knows what the court is going to fashion all i'm telling you and how we're going to decide is that there is a conflict in the district on what the appellate of the post conviction court can do is first relief in that situation i again asked two defendants whose appeal has not been perfected the late it seems burdensome it seems cumbersome it seems a waste of judicial instituted so if if this court wants to say we're going to cut to the chase and allow these defendants who have never been up on direct appeal that's fine what concerns me is the undermining afloat for says o'bryant and i realize my time is about to be out what i what i want the court i would like the court to think about it in these terms if the defendant had raised two issues on peel not but two issues and one of the issues could have been addressed by the second district because the record was sufficient as to that issue of some pretrial motion in limine whatever it is and they would have disposed of it in probably ruled against it doesn't matter how they were they would have ruled and then the issue would have been and what about the reasonable doubt well the reasonable doubt we're missing the court's ruling it's it's gone because  nobody would be up here saying our case wasn't due to kid on the merits it's just that there was only one issue raised and the record was insufficient as to vat very issue that makes everybody feel and that's the problem that comes before the court i do believe that these defendants without anybody intervening any court intervening can go on their own and file a successive post conviction petition and try and meet the standards on