and i think we all agree that it's an open question in the circuit whether the remains of one count resets the statute of limitations clearly if the state had said we're not going to retry you that would have started the statute renee but there's nothing in the record that that suggested that happened then i say the state's silence is kind of open ended just of ok let me ask you about that i think you're right  subject to what we hear from the other side that there is nothing in the record on that subject below but in its freeze the state represents page seventy two of its principle brief that it has a transcript client apparently represented in an earlier proposed amended complaint i don't know whether that counts as part of the record or not part of the record that he was in fact three sentenced and had a new judgment entered in december  eight so far from what's in the record there's a question of what happened in reality and there is potentially newly discovered evidence that why shouldn't we jumping to a legal theory that you have some for the salad issues with but maybe the judge is to be faulted not so much for legal theory but for not clarifying what the factual record really would reflect why shouldn't we just send this back and maybe unite jacobson reman but certainly on some kind of remain and and let both parties document  what they think really occurred put in that minimum strata find out what the heck it is and what it represents under connecticut law consult the transcripts that the state now says it has and maybe we never have to decide this open question at least in this case why don't we why should we do that well that's certainly one possibility o don't i never heard of him in a court but but but nobody at the district court level said oh no that doesn't exist and you know him you know it's an uncontroverted allegation on the record law and this is just from our independent research in my chambers to the minimum is not necessary to make a judgment final and something clearly went wrong here in the sense that screwed up right it's what seems to have happened and i think the district court when it says well when the state elected not to retry him then there was nothing left to do it's not when the state elected it's when the state cold people but they weren't going to retry him that would store the thing in until the state said something the count was open and i think if the count that was open had been the big one the state wouldn't you want us to say well look it's been fifteen minutes they're probably not going to do anything let's just let's just consider it this mess it's only because it's a minor one but the states line weird with saying oh well you know we didn't say anything but at some point you have to assume we didn't want to go forward  the fact is it doesn't appear then anything happened at least from our record as a matter of general practice has what can you speak to less what should have happened like it was this just to whether it was a clerical error or you know how does that decision not to reprosecute become known well to the defendant to the court i have never say that i'm not admitted in connecticut i'm in the circuit and i'm a new york lawyer but i think in the state would be very unhappy if they didn't quite get around to it for a month and then the court said you know what we haven't heard from you we're just dismissing the fifty year count and the sentence is now down to five years the state would want to be heard from they would want to chance to say we don't want to proceed with dismissing this count or we do want to proceed let's have a new trial in this county and they don't appear to have done either thing everybody looks also but i think really if it has to be something done and i don't know what it would be on the connecticut look but i think the state would have to say we don't want to proceed at some point and obviously if the twenty years i think it's safe to assume that they didn't want to proceed but what is that point when does it happen and and i think that's why we need the state to say something because again if if they just well  i'm sorry was there a question can you hear me yes now i can yeah i was going to ask i mean you know if there was a five year sentence it's a five year sentence doesn't when you get asked the five year mark sort of make it obvious this is over well once you got there you may have your mark there were other proceedings in place that would toll the statute so so i think that five years is a reasonable thing but at that  point the proceeding was alive and he's within the statu record being replayed at thirty three r p m star those of us who are old enough to know what that means and now we're not hearing you at all is it better now for that sentence at sixty years by permitting rules that doesn't say anything about whether that rd count was dismissed or still existed that says the sentence is going to be the same no matter what because it was a concurren sentence it's been reversed and remanded but may who knows whether the state will retry it or not retry it either way it's not going to affect the effect of sentence so we're going to review whether the sentence that exists was fair or not and concludes that it was so i don't know that answers our question well i'm arguing that it should because i think it's clear that the center of your division wouldn't take any action at all if the record that no set of three judges on a centrifuge to vision would go ahead and issue a four page opinion without knowing that this last count was still  say i'm getting a little concerned here because you you represented in your opposing brief that in the actual real world putting aside what's in or not in the record in the actual real world and there was a final judgment back in one thousand nine hundred and ninety eight now if that is so in the real world i'm not sure why you would have any concern about our remembering this case to the district court that would resolve this entire it would make absolutely clear what happened and you would win the case because it would then be more than a year before the post conviction for seedings took place so i would get my ex the occasion would be that if that's really what happened in the real world and you've got a transcript that proves that that's really what happened in the real world you would be perfectly happy if we sent this back to the district court to sort this  oh i actually think it does but i need to represent to the court that it's not it's not part of the record i can't rely on this and i didn't i guess this court can't either so i just wanted to be forthcoming to the court  information belief we believe this happened back in one thousand and eight but it's it is not on the record ok but it could be clarified further on remand yes ok i mean you're entitled to argue that we should affirm this no matter what based on the sentence review or based on whatever other inferences you think can be drawn from this record i'm i'm not criticizing you for doing that i just want to make clear that whether you do or don't have an objection if we decided against you on those arguments that a reasonable course of action or even if we decide that we don't want to have to sort through drawing inferences or deciding difficult legal questions that maybe we should know what really happened before we go any further with the case you would not have an objection to are doing that that's a right that's a reasonable course of action i'm not don't object i would ask the court to affirm but i understand if the court would not  ok i'm not certain if i have much more i know the court did make a finding that this man was not in fact retried ever refer to other parts of the record but it never gave a date as to petitioned he this man had to file a request for a century of you right after his conviction before he knew it was going to be reversed much later almost two years later it's being kaori versus one count and not long thereafter essentially a division said this is not disproportionate to six years i think it's reasonable for this court to infer that if that division would not have taken o's actions if i thought there was an outstanding camp still around and he could get you i would say st that the what the sentence review commission did or did not do i don't know that they even have the authority to decide whether to retry petitioner and i think the issue is that whether or not there was a new minimum twenty years later nobody during the relevant time period stated any form and i don't think even with this information about the sentencing commission that still nobody said we're not retrying you so the count remained open i don't think the sentencing commission had the u s a has i guess that's the oh well that's another question but i guess you know at a hearing he could say the guards beat me up and took my minimus away so that that would be part of the day here where it is now i'm so but again i don't think that the  this is his claim is good without them it amiss i think you know the minimize would be icing on the cake but the fact is that nobody said back in the one thousand nine hundred and ninety s or whenever we are not retrying you this there's no indication of that i mean we don't even know if he received anything from the sentencing commission and put it very simply missed of all kiehl what you're saying is that it's the burden i suppose is on the state to establish that this was outside the statute of limitations and the record shows only that there was an open count and if that's the state of the record then  to that you should prevail and the because there's no evidence that the open count was ever dismissed thank you summed up much better than i could have  connecticut law but i think the bottom line is the is no such transcript in this record and i'm not sure that it should go back for the state to produce such a transcript at this point if if they had such a transcript they had the entire pendency of the district court case to come forward with it right and then but they've also got they've also got a statement in a proposed amended complaint by  argument i just as i just stated it that if it's not in the record it doesn't exist and we should go ahead and decided this rather interesting question of what happens instead in the district courts interesting theory on why they hevia is still untimely but the thing is that goes back again right for they send it back and the court is then supposed to consider  the heaviest petition on its merits and then mr awls or some successor counsel for the state comes in and says i've got this transcript you say you were wrong all along and the answer is well too bad you didn't bring it up and so we're going to decide this a b s petition on the merits that seems a rather strange way to proceed if the judge failed to clarify the record because the judge thought that it was worth going forward then maybe even if we do decide the legal issue your way and say he was wrong doesn't that still leave us even open issue before you get to the merits a low as to  well that theory didn't work but what really happened in in one thousand nine hundred and ninety eight well i'm not sure of two things you want to st i'm not sure that if it's if it's reminded to the district court  court here and at a minimum he didn't miss by that much it's not like he's twenty years late has been this been calling for a lot of it so he's if he missed he missed by a much smaller amount of time and giving a break on that is not a huge departure from from anything or or it's not really going to prejudice anybody very much the the other thing though as far as his proposed amended complaint we don't know what he meant by that he's not he may have been very unsophisticated and said something wrong he may not have been trying to say i had a reset in saying but he may have just been trying to say what we already know the reset the sentencing commission said yeah we're going to change anything so i'm going to remain and over that i think i think it makes it's probably less of a waste of judicial resources to just say ok go ahead have you hey b s there isn't a good enough record here to