kenley played guilty to one offense or two offenses how that robbery conspiracy that he had an absolute defense to namely a statute of limitations that on its face is prejudicial really or on its face prejudicial if for example defendant i perceive that he's going to get a better deal by not raising the statute of limitations that's that that is on its face again i submit to the court that the fact that he pled guilty to an clear whether they actually followed proper notices whether they're going through that and then it's also suggested that even if they weren't they were going for felony if not of first degree murder that if there was or there was a conviction there was a quid pro quo for that thirty five defendant would not have pled guilty but would have going to trial but when you break that down the question is what did he plead guilty to he put guilty to with offenses which are guaranteed a sentence of thirty five years had he know state the the government was in a position in order to construct a thirty five year sentence that they had to get him to plead guilty to offenses which were beyond the statute of limitations had he known that an argument is  certainly plausible that that the like of that would given him more leverage in his negotiations with the comp with the commonwealth and with the government the idea being that it is the record shows that there was a gauche ations going on for a period of time and then what the day he entered his plea in federal court had he first been across the street because it literally is across the street errors or had he been across the street getting ready to go to trial on on the government can call obviously demanded to testify to perjury and they would also have to disclose the fact right as exculpatory evidence and that might that in an average self might have been huge problem for them and successfully prosecuting this case the very fact that he was being afforded this opportunity to go back wasn't even a risk in prosecuting the case i guess that's true in so many cases but you know that's something that he and his royal workout of royalist going to and there is an offer on the table how strong their case was all me just a general opinion by the authorities defense attorneys that this is definitely a case because too many defense attorneys i understand is that the case if the death penalty is even mentioned just avoid you to death tell me any way shape or form i considered a victory but to question it was for mr can we decide so what advice was given to him in terms of the strength of the government of the commonwealth's case and addition one of the specific things is was he advi that under nicer sources that meant he could not be convicted he could not get to testimony for felony murder even if he was convicted of that if the jury was not convinced that he intended killing and or participated in it so there is room there too and the very fact that he was walked across the street and given that opportunity to plead guilty means that suggests that there was some problem that on the government's part now as to whether he would have gone to trial on this record i can't say that i can say that well there's evidence to show that as compared not of bill for example clearly the defendant had indicated that he wanted to go to trial i wanted to go to trial his attorney just overrode his will we don't have a situation defense would have been one more factor for him to consider and use as leverage with the government in negotiating ploy and that he could for that reason have maybe been more successful to get them down to thirty years in fact i think the record indicates it's got the federal prosecutor has crossed designated and he had had tentatively agreed to thirty years but at the dolphin county district attorney would not agree to that and that's why they went up to thirty five years so there was this back and forth negotiation going on appellants claim which is not really before this court that he was induced at the last minute he really wasn't given a chance to think about it the record doesn't support i can see that this was going on for a long so i sleep because it was going on for a long time indicates that there was a real concern on the government's far as to how successfully they could prosecute this case and get a sense for it because quite conceivable  deal was thirty five years i think it's very possible that an evidentiary hearing which show that he would not agree to a deal for thirty five years had he known about the statue of limitations but that public defenders and i was the one who negotiated the plea agreement i'm the one who handled the case in district court and i'm handling this appeal now as well i'd like to start off just by quoting  in this particular case from strickland versus washington because i think that's what's happening here with counsel engaging in twenty twenty hindsight in two thousand and eleven and trying to tell us what would have worked or  shouldn't work back then even though it deals with the performance aspect and we're really focusing on i'm prejudiced of the court there said a fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effect of hindsight to reconstruct the circumstances of counsel's challenge conduct and to evaluate the conduct from counsel's perspective at that time thus a court making or deciding an actual in effect in this claim must judge the reasonable where death qualified jurors were going to be selected to prosecute him for a first degree murder case who had been going back and forth on plea negotiations from twenty to forty to thirty and eventually settled on thirty five except that in essence it was an agreement for a term of years regardless of what charge defense counsel could construct to get him to thirty five years it's like make it work we'll accept thirty five years mr thornton and that was the agreement with counsel was handling the state murder prosecution the record is replete with testimony from the public defender and from the federal public defender that this was going to be a death penalty case there had very serious concerns death penalty case it just is in accurate the record is is really replete with references by counsel that judge random a that whining and i just frankly don't understand how that particular matter fits in here what we do have  is as judge fisher noted when you're dealing with that the nihil of a hearing in the twenty fifty five context and you're focusing on a question of prejudiced the issue is is  reasonable probability that that the fandom would have elected to go to trial rather than plead guilty and in this case i think again what the fence counsel is is focusing on mr kelly is incorrect he's focusing on the federal charges and saying would mr kelly have elected to go to trial and those that are on charges or pled guilty to him if you knew about the statute of limitations there wouldn't have been any trial there would have been any federal charges filed regardless of statue of limitations if it wasn't predicated on the fact that we were going to end the state prosecution for thirty five year sentence in federal court no matter how we constructed it i think counsel would be ineffective and a classic example of an effect in this if state attorneys had constructed this plea agreement the save their client from the possible death penalty or a life sentence for felony murder and federal public defender came in and said you know what you can kill this whole deal by just saying no because these are time barred maybe we would he might have made a different decision i mean he knew he was in court he knew the state court ny this twenty fifty five motion without a hearing based on the records that neighbors in the filings that were before and make a determination that there there was no possibility that he would be entitled to relief and i think she could because even though it was in the context of a petition to withdraw the guilty plea it was in essence a at a many twenty two fifty five hearing because as this court and judge slopers opinion noted in affirming judge rambo the petitioner withdraw the guilty plea it was counsel's conduct and representation that was at the heart of those two hearings and all of the allegations concerning his advice and the question of credibility and believability and was resolved against kennelly so you have right now a situation where the district court had already determined that he wanted to plead guilty that was a specific finding based on the record his testimony testimony  cash he was convinced that he wanted to plead guilty and that his positions the contrary was disingenuous so now the same judge who is familiar with all this would be presented with this single issue knowing all that you know about this individual and the representation of counsel and your decision that they provided effective representation that you wanted to plead guilty that the whole thing was about a thirty five year lease receipt he didn't get a hearing before a judge  in effect of this that i mean is that the purpose of collateral review he didn't get one hundred twenty two fifty five and that is it but my my position is that's only needed if the court cannot conclusively tell from the record that he would be entitled to release that's the purpose of the hearing to develop a record if there isn't one that isn't available to the court and in this case there were two evidence or hearings held in may and june of two thousand and six at which counsel and their representation and their decisions were at the heart of the entire hearings and judge rambo listening to what ken lee said about them and how they defended their actions their familiarity with the case their preparedness to go to trial and irrational that this thirty five year plea offer was something he should take she resolve the issue of credibility and reliability and performance in favor of the attorneys and against kennelly now what i'm suggesting is that was a sufficient basis for judge rambo to conclude that if this were if i were to hold a hearing meaning judge rambo would i change my mind and say that with this one single issue that he in fact would plea having already determined that she found that he all along wanted to plead guilty i suggest that she knows better than anybody how she would have found this we didn't judge rambo mistakingly  believe that she had already determined the ineffective in the ineffective assistance of counsel question in the earlier here i think it's clear that the issue was not framed exactly hearing can concerning counsel's representation advice and an overall preparedness to go to trial and determine that cannily all along wanted to plead guilty and counsel is effective that's what she said i over the individual board your forms and back and forth can i have thirty years now the district attorney want to accept that forty years is unacceptable about thirty five and it was accepted why did you do i don't know to be honest i think because we could i thought we could fashion it and we had a parallel federal investigation going on that it might have made more sense at the time but that they were there and i'm not sure that i could a fashion thirty five year sentence under existing state criminal laws was anything stated in the record in the city proceeding i believe judge lewis addressed the defendant and said these proceedings will be on hold because it's my understanding you're going over to guilty and will just cancel these proceedings and take it under advisement and the state court charges i believe were dismissed only after he was sentenced but if i could my my position here in closing would be the focus on a very narrow issue before the court and that is the judge rambo abused her discretion by not holding a hearing and i respect with suggest the answer is no because the record allowed her based on all of her findings in the context of the motion which all the guilty plea to to determine that he was not entitled to relief and this was based on a review of the record and her assessment of ken lee's credibility the explanation of counsel for the rationale for the police that was being offered and that in this particular case the question of prejudice is is there a reasonable probability that had after judge rambo decided he wanted to plead guilty all along would there be a reasonable probability that he known had he known about the statute of limitations and he was said that said i'm a principled individual i refuse to plead guilty to a charge that is barred by a statute find something else in a question is not going to trial on federal charges it's would he have elected to go to trial on a death penalty case and i respectfully suggest the answer is such that the court first dealt back in two thousand and six first dealt with the statue limitations issue and just getting it out of the way and the context of saying that the attorney who then was representing mr connelly mr bork was arguing that the that a defendant would have taken back had decided not to plead guilty and then go to trial in federal court it was never any suggestion that he was going to go to court federal have a federal trial the whole focus would be on the state he would not he would have gone to trial he would have preferred to go to trial federal court i just was not in the offing lastly with regard to just a factual matter with regard to the jury action procedure i think the record makes clear that the jurors were given a questionnaire and they had filled the matter when the process of filling them out when everybody went across the street the jury had not been seated obviously they were trying to avoid it a double jeopardy problem there wasn't that i'm sorry i don't know i don't know that that again is one of