as conviction for voluntary manslaughter became final a pretty versus new jersey and its immediate predecessor jones versus the united states had clearly defined certain limits of the so called prior conviction exception by teaching us in unequivocal terms that the facts that are covered by this exception are covered only because they were established through the constitutionally required procedures for obtaining a criminal therefore it was clearly established that in applying this exception of court cannot make sentence and hansing findings of fact on the basis of materials that do not reflect facts that were established through the constitutionally required procedures and with these points as a backdrop your honors i'd like to spend the remainder of my uninterrupted time today responding a bit more fully to some of the contentions that commonwealth made in its supplemental recall in this appeal first the commonwealth cites a variety of federal and state cases in which it claims that differing courts concluded that the prior conviction exception covers the type of sentence and hansing fact finding that took place in this case the commonwealth would have this court believe that there are multitude of other courts out there that are in sync with the pennsylvania superior court's decision and that therefore it could not be said that the superior court acted on reasonable in this case but that's simply not true your honour's a careful reading of the commonwealth's cases reveals that while in some of those cases the courts concluded that the prior conviction exception allows for the finding of facts beyond the fact of a mere conviction itself the courts do not hold that in making this type of fact finding a sentencing court can rely on constitutionally uncertain materials like police reports and witness statements that were relied upon in this case in fact with one or maybe only two exceptions this issue that is to say the issue of whether the sentencing court can rely on constitutionally uncertain materials wasn't even discussed in the opinions that the commonwealth cites and edition your honour's even if there is a case out there somewhere in which a court said that for purposes the prior conviction exception as it was articulated and explained in the apprentice case it is permissible to rely on constitutionally uncertain materials that alone does not mean that a print is unclear in establishing that this view is not correct nor does it mean that the superior court reasonably applied the prior conviction exception in this case in fact on this point the tenth circuit explained in valdez v word at two nineteen f third twelve twenty two that quote the fact that one quarter even a few courts have applied the precedent in the same manner to close facts does not make the state court's decision reasonable closed quote the commonwealth also seems to argue that relative to this case the scope of the prior conviction exception was not clearly established because in the supreme court case of shepherd versus the united states the dissent suggested that a court can make sense and handsome and findings that are going to glean from complaint applications and police reports but i submit that this argument also doesn't fly your honour's and shepherd as we explained in our briefing a defacto or effective majority of supreme court justices concluded that the prior conviction exception does not embrace a finding of fact that is gleaned from complaint applications and police reports this type of finding instead is covered by the general rule of apprentice and therefore using it to enhance a sentence runs afoul of the sixth and fourteenth amendments and therefore if this court does not apply the case of teague feeling to bar shepherd from being considered in this instance then the commonwealth reliance on the shepherds the scent falls flat because the de facto majority controls here having been issued before the relevant state court decision meaning that the relevant state court decision is directly contrary to the holding and shepherd but if we assume on the other hand for the sake of argument this court will apply t to prevent shepherd from being considered here the shepherd the scent cannot be used as the commonwealth suggests to inject ambiguity into print these otherwise clear holding with respect to the part conviction exception the supreme court is made clear in william's v taylor among a variety of other cases that whether it's precedent was clearly a stablished at a particular point in time turns on its holdings not on dick and not on dissenting opinions that were issued in later cases in fact second circuit explained in brown v green or four or nine f thirty five twenty three that quote later supreme court decisions play no role in assessing the reasonableness of the state court decision close quote at the end of the day in this case or honors what we is a scenario where the sentencing court used materials that lacked constitutional certainty to find that mr garrus burglarized the residence that was occupied at the time of the burglary that is to say that he committed first degree burglary even though the constitutionally certain i think your honor the way i would describe it is a constitution to shortly certain materials one that's been tested through the procedures of the constitution require that is to say something that's found by a jury under the beyond a reasonable doubt standard with the court was trying to capture there your honor was and i think it uses this phrase and shepherd these are materials with conclusive significance there are sort of things that would essentially be to think about it almost in a different context judicially noticeable things that you can glean from looking at the court records that were generated as a result of a constitutionally requisite procedure so if you have a document that was generated through that process presumably it be like any other court occupied dwelling but he pled guilty to his plea was this second degree murder but the commonwealth puts on its facts and the court asks is that accurate is that correct in the defendant says yes that's correct i entered that dwelling and it was occupied at the time that would be really on a pretty and this is this is the poster child case for a pretty where something of which he was not convicted was used as a sentencing factor to increase his certainly honor that's that's certainly one way to look at it i think assuming that applies here and that decisions that were rendered by the supreme court after mr garcia's conviction became final i absolutely believe that this is the poster child of a case no it was not what supreme court case holds that for purposes of recidivist sentencing statutes the constitution requires that facts concerning past convictions must be proved to a jury beyond a reasonable doubt there is no supreme court case that reaches a holding that specific your honor but in the supreme court jurisprudence of that as that for it to be contrary to it has to be contrary to the holding of the united states supreme court correct that's correct that's one of two ways under ed put the other one is an unreasonable application of existing precedent and of course there is case law to say that you can on reasonably fill to apply a clearly established supreme court principle in a new context one that the supreme court hasn't specifically addressed in the holding and i believe that's a brief doesn't really address how this would be an unreasonable application of elm and there is towards as i remember your brief mentions that case just once on page four it doesn't even address how this might be an is other than the fact of a prior conviction facts used to enhance a sentence need to be proven to a jury beyond a reasonable doubt i'm paraphrasing and let me ask you this question in your supplemental brief yes you begin by arguing that the fact of a finding of facts underline a prior conviction do you lose no i don't believe so your honor no i don't because we can use the reasoning of the supreme court in both well certainly in a us what the purpose of the prior conviction exception is it's the rationale so to the extent that that phrase other than the fact of a prior conviction is somehow unclear if this were an exercise in statutory construction it would suddenly become crystal clear when we look at the reasoning underlying that that holding and the reasoning says number one this has to do with constitutional safeguards number two this is a woman doris torres was a quote narrow exception not a broad exception that allows for open season for sentencing courts to look at whatever they want make whatever findings that they want as long as it relates to a prior conviction it's a narrow exception it's one that the court described as a exceptional historic precedent so you look at those things and you say well assuming that somehow the fact of a prior conviction is an unclear phrase it becomes crystal clear when you look at the underlying reasoning your honor and that's why we still went under a printing is your position  think that's right i think you could have an answer but there are certain aspects to a judgment of conviction there are certain things inherent in the judgment of conviction for example what the conviction was for and that sort of thing was sort of our components to the fact of a prior conviction so so where do you line on the facts underlying the conviction that can be looked to by the court in the similar position to the court here as i think that again the facts that can be a look to in this type of scenario would be those that as i said before essentially would be judicially noticeable in the sense that they are reflected in court documents or in a plea colloquy which has also been deemed by the supreme court to satisfy the constitutional criteria but otherwise in court generated documents resulting or having been run through the constitutional process for obtaining a criminal conviction and wasn't there a difference between consistent and inconsistent facts there is absolutely honor and what aren't you dealing here with what you're arguing to be inconsistent facts facts that are inconsistent with the park and that they can't be reconciled your honor the prior conviction in this case was that burglarized a structure that was not designed for was not a residence and was not occupied the time of the burglary and the sentencing court found that it was a residence that was occupied at the time of the burglary you just can't reconcile those two things so you have what i call constitutionally certain facts the ones that are reflected by the judgment of conviction in this case which is that my client pled guilty to second degree burglary and then you have that with the sentencing judge found which is effectively that my a first degree burglary the elements of which are inherently inconsistent under pennsylvania law with second degree burglary and by the way that makes this even more unreasonable than it would otherwise be and that also distinguishes this case from sheppard where the facts that were found by the sentencing court were consistent with and sort of subsidiary to the constitutionally certain facts and that was even deemed to be inappropriate and shepherd your military seems to be a priority but that case to me seems to be tension  those prior convictions in other words you know when doris torres the sentencing court concluded that the defendant had three prior aggravated felony convictions that were determined by looking at the the prior conviction records the court  as i read the case did not go further than that to make findings of fact about those prior convictions or that relate to or that are subsidiary to the park convictions which are still good law right but not yes they're going to push this pennsylvania had a generic statute on burglary then it would seem to me the sentencing court did nothing wrong with you agree with that no your honor i wouldn't when you see generic you mean as for  defining the elements to include burglary of a structure yes i do i don't think it would have i still think it would have done something wrong your honor in the sense that my understanding of generic burglary statutes in other states such as in massachusetts which was at issue in sheppard is that they define a generic burglary two to include a structure or other dwelling and that's about it here we had we had to determine in order to get to where we got here that there was a residence that was designed for human occupation and that it was occupied at the time of the burglary i don't believe those elements are part of what you would normally think it was a generic burglary so that you know no no but that's that's that's precisely my sufficient danger to the community to require incapacitation i don't think so because if that's fact if that finding is going to be used to enhance the defendant sentence then the teaching of a pretty is that it can't be found by a single officer of the state i e the seven hundred you're determined was an appropriate sentence which you have to do you have to get the characteristics of the offense and the offender you're never going to have a situation where all that stuff is crammed into the elements of the offense is always going to be almost always to be information that will come in from the prosecution sure that this person is a threat to society or like you said missing from the fence to show that they're either mitigating circumstances here or the person is not likely to be beat or he's or she has doing as a sentencing judge is imposing a sentence within a range within a statutory range if you're in that's when i say hansing i mean taking a maximum sentence from one level to the next so increasing the maximum of twenty years to fifty years as as happened in this case moving beyond the statutory maximum correct which you mean right and that's what puts it right in the middle of the print is that's that's right your honor yes let me let me go let's go back if this were not the petko were involved you have a great case but the problem is as judge hardiman noted is that there is there's a weak link here either you're under ed but it has to be contrary to or an unreasonable application of clearly the stablished supreme court law and the ni to limit judges to finding the mere fact of the prior conviction the courts of sometimes read this exception more expansively the supreme court hasn't straighten this out how can you say this is clearly established law well your honor  first of all i don't think that a dissenting opinion in a ninth circuit guess is a good way to get forget the senate binion let's talk about that sure exactly what he was as the i think first of all looking in the four corners of the apprentice opinion i think i do think it's quite clear what this is all about but i think the broader point here is that a principle doesn't have to be applied to an exactly identical set of facts by the u s supreme court in order to have an ed put issue there's case  from this circuit for chevy versus johnson and three hundred four and third one forty this court said my point if it clearly established why are there a number of courts when the other way i don't think there are number of courts going the other way around or not on this particular issue which is that you can't consult these constitutionally uncertain materials there but with the first in the eighth of gone the other way i am not familiar with i will concede as i did up front that some courts have said you can look to facts beyond the mere fact that there was  conviction but i am not aware i certainly don't believe the cases cited in the commonwealth's brief say that you can in making those sorts of findings you can look to these what i call constitutionally uncertain material i don't think that was held and i thought your best argument was is out there following that's part of it and if we follow knowles you win sure but that also puts us at all odds with the the eighth circuit in the first circuit right i'm not familiar necessarily with the first and eighth circuit cases that you're referring to your honor i think i've i've searched for other cases that are consistent with the ninth and i've i've come up with at least one that i would remember in a porta latin i'm sorry the i meant to say the second and i am i think my recollection of those cases john and i apologize i don't have it at my fingertips is that the issue of whether consulting these materials was not really the crux of the holding there and said the crux was can you make findings other than the mere fact of a prior conviction you say no but two courts of appeals say yes i say you can't make the findings but with reference to materials like police reports and witness statements which by the way this court has construed shimmered and again getting back to that has construed shepherd in a way that's consistent with this point i thought well actually you're your best org and was and was not a shepherd base one but going back with judge randell said earlier i understood your argument to be that no court had ever said that fact the prior conviction could mean fact of something that wasn't a prior conviction you pointed out that these are mutually inconsistent definitions between first and second degree burglary is there is there any precedent for the idea that you could have a a could a conviction for one thing but be have your sense enhanced above this that's for a maximum based on something for which you were not only not convicted but which would be contrary to or to what you were conveyed no preceden support that sort of outcome your honor and again that's why this is in the sweet spot of a pretty i think it's just such a big part of the problem here that the recidivism statute the pennsylvania pursuit of him statute doesn't talk about burglary in the first degree or burglary in a second degree and it's defined as a crime of violence burglary of a structure adapted for overnight accommodation in at which time of the offense any person is present and that's what the sentencing court did look at the facts to say was this particular crime a crime of violence that's right you're the three strikes  honor defines a crime of violence with reference to a burglary in the same way that the burglary statute defines first degree burglary so that's yeah that's how the sentencing judge got to wear it to where we ended up here but yeah exactly what happened was implying the three strikes law the sentencing judge went behind the second degree burglary conviction sifted through police reports and witness statements and decided yeah you know this this place was an occupied dwelling and therefore the three strikes punishment is appropriate in shepherd as permitting judicial fact finding that concerns a defendant's prior convictions those were his words so keeping at that money how does the judicial fact finding here run afoul of that pronounce i think that justice thomas was hopefully capturing what i think he was which is that when he says current starting the fact of a park eviction he means finding the fact of a prior conviction and not clearly he meant more than that right because if it if his view as expressed in shepard was limited as you seem to be speaking generally to the judgment of conviction then he'd have much less consume expressed well i would say this to your honor course justice thomas agreed with the plurality of justices that what was going on in sheppard was in his words not only constitutionally problematic but constitutionally in error so he starts out by saying that you know to construe the statute it issued in shepherd the way that the government would construe it as a constitutional error and that's that was a scenario where constitutionally uncertain materials are being used to make findings about a prior conviction you don't thank you for your time with your time we have  question in this case is whether the scope of the exception to a printed for sentencing facts relating to prior convictions was properly applied by the state courts the united states supreme court shephard which was obviously followed a pretty much office seat after the direct appeal in this case was a case of statutory construction under the armed criminal convictions act armed career criminal act excuse me  so the arguments were making here about whether the exception of for recidivist facts under a print be encompasses facts about the conviction or fact of the prior conviction or whether the sentencing judge is allowed to consider witness statements or police reports or whether the sentencing judge this judge is allowed to look behind the elements of the crime of conviction and all the rest have not been the subject of the united states deciding the scope of the recidivism exception under the new united states constitution which is the ultimate question here that is is the end of the matter for this case because the hague a statute prohibits relief under these circumstances  g so what we have is conflicting picked up from three cases that under the standard is not enough and the other major point which i want to make at the beginning it's in my brief but it's an independent reason why the rich can't be granted is that even if we accept the interpretation of a pretty and shepherd as clearly established law garrus is still subject to pennsylvania three strikes rule a based on all the questions from my colleagues i'm still wondering why this matter is before us and that's not an existential consideration there seems to be some dispute between you and petitioners counsel as to just what the superior court said in the various stages of the state process here but it does seem that there were at least certain of versions by the superior court to the fact that there were two other crime of violence offenses convictions right that is you suggest suggests that the shipper issue was resolved by the superiors who are in their favor and you challenge that i disagree with that i mean that's that's obviously a matter of reading the opinion on direct appeal before shifter was which which counted the three prior convictions all separately shipler had not been the side against shift or was decided between direct appeal and p c r a so without saying it is it your position that we never should have issued a certificate of appeal ability in the first place yes  of constitutional of we can supply here or should have applied yes because i think that ultimately what's happened here is the state court didn't reconsider its its it's a direct appeal decision under sift er what it said was when we can't decide the schiffer exactly and even assuming that shipler was or state law was improperly decided in this case and i don't think that that's right but assuming it was it's not a federal or can i take you to a different point by all means can you point to any decisions of the pennsylvania supreme court that set forth what is required not i'm not aware of any pennsylvania supreme court case which if you have interpreted a prend the to define the circumstances under which i'm just talking about a police report i mean you they put in the police under the three strikes law if mr garrett had objected to the underlying facts at the sentencing if he had said no that the girl was not in the house during the one nine hundred ninety seven burglary what i'm saying is that under par under state law under if there is if there is some dispute about the veracity of the police report then a hearing would have happened and it would have turned from the police report to witnesses  and the burden what the the standard would have been violence of the evidence and the ultimate question here is whether it should have been proponents whether reasonable doubt under a friend but in terms of litigation and having a hearing based on the police reports if the point had been contested then the hearing would have been triggered and i wouldn't have gotten that i mean let's assume if shepard applies doesn't sheppard say that for purposes of the determining exactly what you pled to because there's a question number one shepherd does i know there was some discussion earlier this morning about whether the operative phrase facts of a fact of a prior conviction is limited to simply the verdict the judgment that appears on the docket sheet shepherdess pretty clear that that's not what it meant when it was not what the court meant in a pretty that there at least to some wiggle room but i agree with you shepherdson we go room if you don't know what it is that the person necessarily pled to there may be a qualifying conviction under three strikes you're out certain things that you're a baby and non qualifying in order to determine which is which but here what you've got is a person who pled guilty unequivocally to second degree burglary no question about it how do you take a second degree burglary and by allow a sentencing judge to make it a first degree burglary let me first answer  your shepherd point that the thing is is that shepard doesn't say anything about witness reports police reports on doris torres doesn't say anything specifically about those things either but the almost diametrically opposed to the death and sheppard that is almost doris torah says things like there's almost nothing in the sentencing context that can't be decided by the judge by a preponderance of the evidence granted  was a if if a defendant pleads guilty to a simple assault in pennsylvania and the the sentencing judge decides to look many years later at the police report and notes a sharp object w that judge determine that it really wasn't a simple song that actually was an aggravated assault and you're into the three strikes rule a fair extension of the rule that you propose i think it is although i would say that if the defendant objected and said no then there would be a hearing about it and no two who said said no judge the prosecution is misconstruing what happened at that earlier trial it was not a sharp object isn't it fair or to hold the prosecutor its bargain that this is a simple assault rather than years later well than jets to the second point here which is that the i think that the one thing that makes this case more than just a routine type of case is that in the first concern was higher first degree how's the fact underlying i mean if you had a first degree murder larry please here there would be an tourist issue there is what's the fact underline and there it might be fair to say ok you had to prove that there was a person in the house and you necessarily had to for first degree ok he was convicted of second degree burglary which is does not have as an element that a person's living in the house the fact underlying that conviction would be that there is no person in the house that's when i don't like that conviction how can you take that argument and say that suddenly a fact underlying a conviction of which he was not convicted suddenly becomes not just a fact underlying the conviction but a fact of the prior conviction in order to raise his double jeopardy as i understand the argument here even on the other side even even my friend across the aisle admits that if the facts about the nine hundred ninety seven burglary had been submitted to a jury by reasonable doubt corresponds to the elements of the crime that's that's there are a lot of reasons why a jury or a judge can find someone guilty of one thing you know a third degree murder as it was the reverse is really consistent and you're not i don't think you're getting to the question this is not a matter of where there are so whole here that could be filled in f two says and this goes back to judge circus point i mean if you had a general burglary statute that would be one thing but it's very precise it's as you're convicted of  going into some place which is not a dwelling and doesn't have somebody in it and this sentencing judge said despite that conviction i'm saying you into play so was it well and it wasn't those are you can't in the universe of what's possible those two things cannot be true at the same time so how can you say this is fact finding about the prior conviction and what it's really is fact finding about the exact opposite of the conviction but how do you get around but that's my point is that because it's not in the stoppel point that we're all in agreement that you can relive a gate at the question is under what standard now i understand that it's not it's being used to raise his is just a maximum sentence conviction says it isn't those things by definition it isn't those things so how can it be can fact finding about the conviction when the conviction by definition seals off the very facts that the sentencing judge the clear fact well maybe we're disagreeing about when you say facts about the conviction i agree that it's not the conviction but there were facts introduced at the plea hearing which we don't have a transcript of frankly  why you're outside but probably right because if you start saying i mean it's clear here if i could it's clear that the court at sentencing looked at the police report and witnessed a crime wasn't  yes that's correct although i we don't have the plea colloquy so we don't know what facts you admit it but the record indicates a look at the police statement with the police report and with this thing that's correct well let me just say that if just as a hypothetical if we we had that welling with somebody in it then you can't be guilty of second degree i can accept that it's it's inconsistent with the facts or acknowledging i'm not sure that that's that that that the trial judge would be unable to accept that plea can we move t and let me move an excuse me let me take you to another point you seem to argue you argue in your brief supplemental brief and also in your argument here is warning that there just was no there  no cases there from which one could conclude that this was an unreasonable application of plenty they were there's no way for a state court of looks at these facts and said you know this isn't consistent  it talks about a general standard as a non as opposed to as a general versus narrow extent yes and clearly here if you look at the general standard the general standard talks about a fact of prior conviction and looking at that general standard can you show me any case that would conclude that what the state court did here in sentencing reasonably applied prend i don't know of any case that where they took contradictory inconsistent facts and enhan the statutory maximum from twenty to fifty years but i don't know of any case ok but in a way i would the lack of a case on this point sort of goes to  looking for a case from the united states supreme court which says that if you have facts in the record that are inconsistent with it with a verdict you know in the plea there are lots of reasons why there's discretion with respect to a plea and why a judge why why a plea might be one thing rather than another is there any you turn around the question say is there any u s supreme court case that says once that once we enter up sleepy even if they're undisputed facts that are contrary and again undisputed facts there is no just there's never been a business court case that says the trial judge in the state court could do with the judge did here there's no case that says that i'm not i'm not nor is there a case that says they can't correct identify case which says which clearly support what they do the holding in the dicta of what they do that the idea is we're in a murky area so the only way to overturn what the state court did is to identify case they clearly the whole thing is as you if it doesn't argue eliminating the unreasonable application prong by saying that the court's application of a plan the under these facts could be reasonable because i can't think of any that would be more on reason what about if the flip side of your argument if there was some indication in the record that the defendant said there was court can consider we're under pressure and it's talking about what was someone convicted of so it's not really what someone said would someone admitted it's whether you have been convicted of a violent felon and if you're being sentenced or something of which you weren't convicted and it's raised your statutory maximum i don't know about you but that would come as a little bit of a shock later on once you pled i mean sion with intent to distribute judge i think we all agree can do that if we go to a second scenario where there's been a trial same scenario jury trial convicts only a simple possession you're looking at the case and there is a boatload we drugs involved in the second case now we're trying to decide if in the second case his sentence should be enhanced with a plea or a trial in the second case where the defendant sentence in that case should be and hands based upon what happened in that first case the friend that was found guilty only of simple possession if there was a statute that allowed and has been the second time around based upon a prior conviction maximum sentence give a sentence which would get him into a range for another crime so if we simplify this forget about case a case b just in case a could the first judge who presided over that burglary a back in ninety seven said she was there i believe or i know what the jury was thinking about when she testified in my mind she was there i'm going to send your accordingly i think we'd agree maybe not that charges could not do that i don't have the same situation under  remove that scenario to the second situation we have a look at that first circumstance this is exactly the same constitutional problem no i agree with your honest characterization of whether the first there would be best an exceptional departure and it says that there is tories had admitted the three prior earlier convictions and here this person admitted an f two conviction he did not at mit and f one conviction and therefore you can't go beyond that well but that but a couple of things first of all he had what are we talking about admitting is it that admission to sell the elements of an f two burglary which do not include the elements all the elements of an f one program but did he ever dispute the underlying fact that makes a difference here's what he admitted because that's the fact but when you say ever did he ever disputed by since the definitions of th a strange and it can't overlap by confirmed by confessing to the one he's necessarily denying be other it's a matter of logical insistence it has to be that if you say i burg then aren't you in a circumstance where as judgment delano jam broke it out you have to be right in the heartland of a pretty it can't be the case that that admission absorbs something which is inconsistent definitional i think that was in question if it was you can answer it well i agree that this is a this is almost a sui generous sort of situation because you have a very specific right i agree with that i don't mean to under play this but that the idea is my basic point in response is that it's raises a whole set of questions which is we all agree believe that the standard here is the petty versus quarterman question which is what nettie versus quarterman mckay's that said quote even a general standard may be applied in an unreasonable manner close quote and that occurs for example where quote a record cannot under any reasonable interpretation of the controlling legal standard support a certain legal ruling close quote earlier you argued that there was no case that said the state trial judge could do what was done here so i understood that your position that absent such a case is ipso facto unreasonable i don't think it's a fact on reasonable but you know if if there's no case out there that supports the commonwealth's position or my position you look to a the point is making it earlier and try to end up or you can look at is what the conviction was for i understand that to be your view and of course court could have said facts underlying the conviction which you can drill down a little bit further but  cocaine and later can the judge say sentencing and the judge make a finding that the relevant conduct indicated that he really wasn't in for one hugo he was in for seven so what on earth are we talking about i don't think your honor like to address that point because mr garrus is nine hundred ninety seven burglary conviction we believe can't be treated as a strike against him for the reasons i've discussed today under the three strikes law his enhanced sentence only stands if he had two other prior strikes against him at the time when he committed the voluntary manslaughter at issue here and what he had were two robberies that occurred in there that for which he was convicted in the early one nine hundred ninety s and during the post conviction relief proceedings in this case mr harris argued that under state law principles those two convictions should be treated as a single strike because the sentences ran concurrently with one another but you say the superior court essentially granted him that point and i'm today as one of the strikes if you take that off the table for the reasons we've been discussing today then the shifter question doesn't matter and it becomes relevant that from the context of the brief sentence i just read it didn't matter there it didn't matter there