if you good morning runners my name is steven becker on behalf of johnny hill this case presents a question of first impression elena why regarding illinois supreme court rule for sixteen c involving the death penalty notice of this court is going to hear two divergent interpretations of the role mr hill contends that the plain language of subsection c is clear and unambiguous thus if there is not good cause shown the state is required to file the notice affirming or decline in the death penalty even under were sixteen he is in that c basically you presume it's going to be a capital case unless well the state's argument is that we need to construe this in pair immaterial with a subsection a that the only comes into play where there is an ambiguity in subsection c but even if their argument is correct the the  presumption comes from the committee comments which again we don't look at until there is an ambiguity that as far as the defendant goes wasn't it always treated as a kid little case  for the special team which is for sixteen d was not in effect at the time of the offense in this case that didn't come into play later on so eventually there were capital attorneys that were appointed but at the initial part of the case that rule was not actually  effect and i just to follow up more on your question about subsection a even if we get to that point subsection a says that the procedures adopted chill be applied to one all cases where in capital punishment me and be imposed on less the state has given notice of its intention not to seek the death penalty now the question you're asking is does that create a capital presumption that's open ended no it doesn't the time at which the state is t decline the death penalty is one hundred twenty days unless good cause shown otherwise this would allow the state if we read it according to their interpretation to wait until right before trial to decline the death penalty which  we have to do in terms of whether it's mandatory directory or discretion if i think it's been a directory under novel our why is that so i think it is mandatory because under robinson there are two a late there are two exceptions to the provision that in other words where you have a statute or a rule that does not state a consequence as this one does and as most supreme court rules do not have a consequence that we deal with criminal cases there are set exceptions to that to make it mandatory what otherwise it might be directory those are number one that it protects important rights are of a particular citizen here i would suggest this protects the most important right there potential right to not to be executed the second exception to the mandatory directory dichotomy is that there is specific negative language in the provision that is connected to temporal limitation this is exactly what we have in subsection see where the rule states in no event shall the filing of the notice be later than one hundred twenty days after arraignment so i would suggest that both of the exceptions sixteen it states that the provisions of paragraph d which require membership in the capital litigation by shall be affective one year after the adoption of this rule and shall apply to cases filed by information or indictment on or d i think the state's general idea of the capital presumption that open ended is is not right now by the plain language the impera material doctrine is not a political because the language in subsection c is a clear and unambiguous also we discussed a little bit about that the remedy provision the states argument that because there is not a remedial provision there is no consequences and i think they have discussed that pretty generally with justice quinn therefore i will just  move on to the idea of the procedural bars which the state has alleged first of all the state has argued that the case is moot because the defendant did not receive the death penalty here our argument is there is no because we have a right sentencing issue namely that here because the notice was not stricken and the judge believed a judge for it was assigned later to this case after going to n word it wanted for get involved as a full support  was under the impression when he was imposing sentence that the death homely course was on the table and the defendant was was arguable he found that the defendant should not be have the death penalty imposed upon him he also found where the he could have that's that's correct but our point here is in the case law is quite clear that where a judge has a misapprehension of the sentencing range the maximum sensing range even if he imposes a sentence i'm sorry of maybe i didn't read enough what was is duty the equitable doctrine of latches i won't spend too much time on that other than to say that of course because it is an equitable doctrine the party asserting the equity cannot come in with unclean hands and our argument would be because the state violated the notice provision admitted to doing so and gave nuc no good cause they cannot assert an equitable defense in addition based on their argument that there is a capital presumption they would not have changed their conduct anyway so cannot demonstrate prejudice lastly raise a crucially argument on unfortunate sure the problem is the factual basis for this is not worn out by the record they claim on page four of their brief that the parties were litigating numerous death penalty motions between the period that they filed the notice in september of two thousand and two and july of two thousand six their hope was only one motion death penalty motion that was filed during that time period and they fail to point out that was withdrawn by the defense at the next status hearing all the motions pertaining to the death penalty did not the rule doesn't specify remedy but i submit to you because there was that's because there's little to no possibility that the defendant would be prejudiced by a late filing in preparing for this argument i really developed appreciation for what the special committee on capital cases did when they wrote this rule because they wrote the rule in such a manner as to create a presumption that a potential capital case would be treated as a natural capital case until or unless the state followed a notice stating otherwise unless the state filed and declined to seek the death penalty we don't need to look to the committee comments to know about this presumption because it's clear from the language of the rule itself there are three provisions of the rule which i think my opponent has overlooked or under estimated the first subdivision a and it could not be clearer it plainly states that the special procedures for capital cases shall be applicable in all cases where in capital punishment may be imposed unless the state has given its notice  those are the exact words of subdivision a so in other words the capital rules apply unless the state formally declines the death penalty the plain language of the rule itself is creating the presumption section d says much the same thing the judge appoint two members of the capital trial bar even if the state has failed to provide any notice so specific so section decent reciprocally addresses a situation like we have here where the state has failed to comply with the notice requirement that section d c s that the defendant still receives the benefits of the capital rules and finally section c the notice requirement itself requires the state to fellas notice to have intent to seek or decline and i think the addition those words are important because again a potential capital case is treated as an actual capital case unless the state actually declines defendant argues that we have to apply the clear non ambiguous of the rules as written and we agree with  is clear but defendant is asking us to ignore three provisions of the rules to fit subdivisions a c and b and we can't do that we can't give them no effect whatsoever we have to read the rule as a whole and consider each part in connection with the rest i think it's also important to note that the state's late notice in this case did not surprise the defendant even though in his reply brief defendant suggests that it did in two thousand and six when the moved to strike defense counsel said he just recently received the state's notice but that's not true the state's notice is included in the common law record it's on page c fifty and it's file stamp september of two thousand and two in addition as i mentioned earlier the state's attorney in open court announced his intention to seek the death penalty in august of two thousand and two so council didn't just received the notice only recently in two thousand and six he received it four years before in two thousand and two and in that connection i submit to you that the defendant can't show any resulting prejudice the state's notice may have been late but it was found five years before the defendants trial began in two thousand and seven i want what you see you can't  absolutely he's never even alleged that his preparation for trial and sentencing was in any way impeded because he himself treated as a capital case defense counsel themselves treated as it as a capital case before they felt their motion to strike defense counsel filed twelve death penalty motions participated in his management conferences they reap all the benefits of paying in this case treated as a capital case most notably representation by two highly qualified attorneys and members of the capital all i don't have one on one hand as justice quinn said just thank thank the lord on the other hand you've been going through this whole process with something hanging over your head that you didn't need to have you know well i think that the rule again was written in such a way as to encourage preparation for defense counsel for the for death penalty hearing and then minimize any resulting prejudice and without some showing of prejudice some inability to prepare for a capital sentencing into consideration because they could have written a rule the said if the state's notice is late the state is precluded from seeking death and they didn't do so my opponent lynch said that defense counsel in this case did not file any death penalty motions before the motion to strike i would give you two as an example they move for depositions which are permitted only under the capital rules and they did so on december first two thousand and four and they also found a motion for discovery for additional evidence and aggravation which again was a right of only in these capital cases and they did so again and the first of december of two thousand  sentence and in the enhanced penalty from murder is twenty to sixty years so the defendants are really received a sentence which by his own admission is appropriate if it has it and denigrate any air in the sentencing hearing itself and there's no great reason to vacate th sentence in his reply brief defendant finally comes and finally states the basis of his argument says well during the sentencing hearing judge point he decided not to give him the maximum but to give him the next a maximum i think are his treat this disease the problem and i think that the speedy trial analogy is is that lightning because this is the rule for sixteen is very different from the speedy trial statute first of all if the supreme court rules it's not a statute so it doesn't confer a substantive illinois courts they can fashion a broad parameters but i would think that the remedy you know usually would be something along the lines of saying ok state you didn't file your notice within one hundred twenty days is now one hundred thirty or whatever but you know this instanter or you found a notice but it didn't didn't include the eligibility factor so file a proper notice that indicates that one when be fact or the court could order the state to comply with only discovery of wills of course they should be doing so anyway  history and criminal history that included seven prior convictions including two domestic battery still woman who was the murder victim in this case there were six other domestic battery switch the victim never prosecuted and cleaning an incident which the defendant beat her in the head and about body and so if we agree with that then all we're saying is that this division says it's moot let the supreme's have the argument will be raised eventually because eventually cook county will get some people on death row where they did file i time in the state  should we not apply the public interest exception and you have an answer from this panel as to whether or not what is the effect of a failure of the family file or you know to see well i think you just put your finger on a judge when you said this is the first one you seen the rules were enacted in two thousand and one where in two thousand and ten this is a case of first impression the public interest exception looks to see if the situations like that occur if there's a man of litigation going on this case of first impression i have no reason to believe it's going to waited until july of two thousand and six to college i just attention to the year and i won't belabor the point but again during a four year period time defendant was represented by two members of the catalytic nation bar and was filing motions designed to obtain the benefits of the capital rules i think it's important to remember the defendant is now just challenging judge porter's decision to deny his motion to strike so he has to show how that decision was an abuse of discretion and i submit to you if we look at the circumstances no the judge put it when he made his ruling judge crater hit every right to do that defendant's motion a motion made after the party suspends four years preparing the case as a capital case with all the time and expense that that entails and finally defended argues that the state can invoke him to not invoke equitable equitable principles because the state doesn't have clean hands but i think he's misinterpreted that doctrine defending his provided the case themself it's the m you're now i don't think panel would have to say that at all and i don't know that it would necessarily be ineffective because it could be a strategic decision judge cannot yesternight good judge if you look at this record you'll see that there were a dozen death only motions filed in july of two thousand and six and when they were denied it was then and only then after a four year delay that they moved to strike the state's notice and preclude the death penalty i don't know what was going on in defense counsel's mind but there is always a possibility for a strategic decision but i think it's a