will this case go back for resenting only or will this go back to our mr jones to challenge the alleged violations on the merits and i'd like to take a step back and talk about what this case means for defense overall the issue here is what should trial counsel do when confronted with a situation where arguably unlawful conditions of supervised release are imposed on the on the defendant and claim without any record i think that under the record that we have here based on what council did at the trial level we don't necessarily need to do that now as i said in my reply brief if the court decides that additional facts are necessary that is something that resenting or me mr jones the defendant is that he doesn't have the opportunity contest these conditions if these if i'm right and these conditions were in fact unlawful then mr jones is being sentenced for violations of conditions that never should have been imposed in the first place and that's the real question that's at issue in this case is what should counsel do when confronted with this situation based on my reading of this court's ruling mute in the united states versus neil the answer after the after the conditions that neil makes clear you cannot move to modify just on the grounds that the original procedures were inadequate which of the findings were inadequate that's correct and the the issue here and this this goes to what this court fifteen years between the sex offense and the imposition the condition is entirely too long there's no lawful basis for most somebody who've been out of custody for it i don't know if that was exactly what it was your out of the if there was definitely a fifteen year period between the time the issue came up and the time for the sex offense occurred so and i will agree that there are some slight differences in the facts of johnson versus this case but the fact remains we're talking about a difference of fifteen years between the last sex offense and when mr jim jones was released and that's directly on point what was held in johnson so if johnson is correct that that condition is unlawful under those facts that it necessarily follows that the condition here was unlawful as applied to mr jeffs the question then becomes how we deal with it and my theory and what i'm asking the courts is determine is should counsel when with a situation like this where there is an arguably unlawful condition that the defender has been charged violating is a motion to modify the correct course of action and if and if i'm wrong i'm wrong but if i'm right then mr  so let me just throw out an analogy that the trial court judge issues a temporary restraining order that prohibits conduct that would clearly be protected under the first amendment expressive conduct demonstration goes forward in direct violation of the t r o though the marchers are brought in on contempt of court charges can they defend on the grounds that the t r o itself was unconstitutional and that's it exactly the issue here i don't answer to that under the supreme court's precedents and you know they have to obey the t r o and find another way to challenge it and the the prospect for supervisors supervise e s to be able to engage in self help as you're suggesting is very troubling to me and i understand the concern and that's that's the real issue is what should a supervisee do in a situation such as this and i would also remind the court that mr jones was not represented by counsel until after he was charged for violations so this isn't a situation where he understands that i he shouldn't have been he didn't believe that this was a condition that was lawfully imposed and he can go to the court and say you know he was represented i believe they did it and that then leads us to this situation where we got in assuming for the sake of argument that it was an orderly on off condition mr jones is under supervision for something he shouldn't be and he's charged a violation for something that shouldn't happen and it does put us in a very odd situation and your point about the first amendment issue is well taken but we still have this problem with mr jones being sent to prison for a violation of something that should have been a violation and should never been i so the question is what should counsel do in situations like this so what i'm asking for from the court is a finding that emotional modify is a valid defense and procedurally what could happen is  illinois state sex offender registration act issue that is a very difficult statute to deal with the should the court read the giant blockquote of the requirements but the problem of course is that if mr jones was and that to be clear i'm not arguing that the sex offender registration requirement was unlawful imposed the issue is should that have been challenged on the facts as not a violation of the morning your honour's may please the court great walters on behalf of the united states judge hamilton and when you brought up the heads i win tails i lose the bottom line is he has elected to go forward on direct appeal with the claim of ineffective assistance of counsel is for entering submitter reply brief is not done oral argument he has elected to go forward the time for withdrawal that argument i suggest to the court has passed to see exactly what he was doing as he portrayed his client as before judge baker saying your honor here's somebody who for the last year didn't follow the probation officer's instructions were certain conditions now look at his conduct over the last three months while on bond pending disposition of revocation and what i am asking you to do and i'm paraphrasing mr henderson but he said don't send him to jail give us two more months to continue to show that he can meet these conditions i suggest to you that that is a very prudent paternity a wise attorney and ultimately that is a tactical choice that is unreviewable even on collateral have he calls these unlawful conditions and yet he has yet to argue why they are and why they were unlawful when they were imposed the conditions as imposed were lawful never challenged on appeal and yet how did they the sudden become unlawful he has yet to explain the johnson case to which he cited in his brief and then states today that there are just quote slight differences there are tremendous differences between this case and united states versus johnson regarding that fifteen year period as you pointed out judge hamilton that fifteen year period in the united states versus johnson that defendant wasn't sitting in jail here we have a person who committed his last of three sexual assaults in two thousand and one and then goes to prison federally for a number of years and then is released and while in prison never undergo sex offense treatment which sex offender treatment which was up to him but the circumstances run changed three times convicted no treatment a lawful order by a judge that you will undergo treatment and he doesn't do so the same thing with the mental health condition before trial he had a certain diagnosis because of an antisocial disorder multiple personalities even after he gets out a diagnosis of antisocial disorder he even is recommended for treatment by that provider that made that recommendation and he blows it off self help is not the remedy any more than when i'm driving home to peoria today down i fifty five and the police officers lights start going off behind me and i thought say to myself you know what i'm not speeding i'm not pulling  over that's not his option his option to contest the conditions was on appeal and he didn't do so they were lawfully imposed and there is nothing unlawful about those conditions that he has raised in his brief that i believe  whatsoever and so then the drug testing or the patch on on what basis was counsel to challenge the patch that he tested positive with he offers nothing because there's nothing in the record we have to presuppose or accept his argument that it was unreliable based on a bunch of assumed facts none of which are in the record before this court to say that coun interpretation of that statute is very strange that's assuming the court even gets to the interpretation question if we got to it would we say that somebody on supervision or under that statute has to register any phone he uses at a friend's house to call for a taxi or something like that no and i think that's the distinction between as we lay out the subsections even though they aren't  t it when it says i think that's an important distinction between his or her residence change employment in the first part and then e mails that they use or plan to use i think the legislature was very intentional in not sa phones that they use or intended use but instead modify that with his or hers his or her phone so as a lead from the statute judge hamilton when they talk about his or her phone i think his or her new address change employment telephone number so your telephone number school i think that that modifier his or hers that doesn't that doesn't modify something that i just temporarily use or borrow to make a single phone call but when it his or her if it's something that i possess over a continuum of time such as on this case whether it's in his daughter's name ri his own name i suggest to the court that it was his phone he's the sole possessor sole user has pornography on it that falls well within the scope of his or her your honor i don't think and they examined all that you gave temporarily borrowing a friend's phone to make a call that anybody would refer to that phone as being mine or his or her phone than that of the borrower and so i think that's the distinction and so when we look at the second phrase as far as when we get different email addresses i think it's important that the legislature use the term that the sex offender uses or plans to use because the ubiquitous nature of the web and my ability to use for example my wife's email address even though it's not mine because i know her password so i could sit at work and quote use that address but it's not mine and so that's the reason for why we have different modifiers through that section that we're analyzing but even for example if this court were to come back and accept counsel's interpretation of the statute which again i believe a straight he still has a grade b violation regardless because of the drug offense and that grade  violation is what drove the twenty one to twenty seven months for under the what is the very advisory guidelines of the viable supervised release violation so i'd even ultimately i would suggest to you it's harmless that we're not dealing with the sentencing packets here under a peer of guidelines that you would in a normal criminal case i mean he's got to gr violation regardless and if i could just make i'm not quite out of time but i would like to make one comment regarding our our own concession the guard in the sense i believe counseled stated that we  confess at the statutory maximum sentence that the court erred we're not saying that the court necessarily that the court could not impose a statutory maximum sentence or concession is very limited and that he relied we believe on materially  he counsel talked about you know we're here because can there be a motion modify after the fact will certainly there could be emotional modify under neil and under thirty five eighty three but after the fact even if the court order modified after a violation that does not take away the fact that he i only did the condition a supervisor designation absent the condition be an unlawful or unconstitutionally vague i just i don't see that as being permissible for a court to force someone to come into court and say you know what i don't need this condition more because that's really what he's arguing i don't need it so give me another proton designation to say that i didn't blow off my probation officer for the past year that i submit to the court would be dangerous precedent and respect for your order on the ridiculous  any time mean you know the statutes says that they can be made a time even on appeal and neil specifically says that the question in terms of whether or not a condition of supervised release should be impose deals with whether cheapos now is appropriate and now so the logical progression and this is the core of the argument is can a motion to modify be used to deal with a condition of supervise specifically state for drug offenses even though this is a class b the application notes state that the trial court shall consider whether or not it's the availability of drug counseling and drug treatment the need for revocation and prison time which is usually what's required in grade b violations so even assuming for the sake of argument that happens mr jones ultimately did have to was found guilty of a drug offense that doesn't necessarily mean he would have been sent to prison at all or that supervis