i know exactly you're for until i read your reply brief but you have to make sense out of the statement and it to me you can't make sense out of that statement and think he was referring to the hearing is supposed to the report it appears to me your honor that they discussed the hearing as far as what a competency hearing is what would happen that's all i've been able to get out of my client and that appears to be what happened here that they discussed here and what happened in the court changed the date because the report immediately brings up the question which was only brought up in a supplemental filing by the prosecution as far as why is this not a long case and probably mispronouncing sloc but in that case this this court held that if the absence of counsel is voluntary based on counsel's own decision then there's not a crime of gravity and i'm not arguing against that i'm saying that in this case there is a nd problem and that is that mr clarke was allowed to waive his counsel without the necessary for findings and therefore was allowed to proceed as his own attorney in a situation what was in question was his own co time if i'm getting the stakes of the argument correctly this all turns on chronic right because you have to have presumed prejudice because otherwise you haven't argued there is prejudice from this right so that's why chronics important and i am i right you are on a case about the stakes here aren't all the chronic cases ones where the state had something to do with defendant's lawyer not being able to be at the hearing whereas this is a case where you just can't say the state was responsible in any way for either presumption but the state had nothing to do with the failure of the defense lawyer to be there at this at the hearing which cases that jani does not want and that's why i'm saying that there's a separate problem after chronic and that is the there then at that point he's saying ok i'm going to say that i want to go to trial i'm going to say that whatever the compensate reporters ok there's no way that trial judge had any rate reason to think he was about to represent himself in trial that's not the way this came down it came down as hopes a mistake busy but i've talked to them were good i'm going to i'm ok with going forward he didn't sam i'm ok with going forward by myself he was not representing me and you know representing himself and find out which of them is representing him and get them here before that instead the state says the judge says the state says no we sent this for an advance scheduling date based upon the report appearing and we're not going to allow that  so i think your honor is right there in the state action there because the judge was essentially mounting with not only was he acting as almost an advocate for the prosecution was going beyond what the prosecution said the prosecutor would been very content for one we could german and having counsel there as they should have been and that's that's really where where this thing went sideways is when they allowed this competency hearing to compensate him was help somebody had to represent to find out you know can i say i'm ok with this given that he'd it was being down i think he said ok you're on he's not going to take a hand that the judge is dealing him it's in his favor and argue against it so the clearly established law is this some more of a competency hearing was held somebody represented the defendant at the competency hearing either his counsel who wasn't there or the defendant who was there and if the defendant was the one representing himself then that point we need to th at all your honor not not only that the judge previously had been one of the parties who raise the issue of the defendant's competency and that's where goodness comes in which says if the court has reason to believe that there is a question of would have been an obvious problem and i'll reserve the rest of my time for  good morning your honors in there please the court rebecca brice assistant attorney general on behalf of the respondent out of the ward kevin lindsay the honor as judge sudden pointed out were and probably and so what's truly at issue in this case is whether the united states supreme court has ever held  competency hearing such as the one that occurred in this case is a critical stage of the proceeding to which chronics presumption of prejudice extends the supreme court let me ask you  and this decision indicated that it was assuming that competition and the competency hearing was for a critical stage of the proceeding so based on their state court determination we're not concerned about whether this was a critical stage because the state court said that for purposes of this decision it was assuming that it was a would you agree with i think that's not necessarily true your honor because under deference is owed to the state court decision and not to its reasoning so this court's responsibility is to determine any arguments that did support or could have supported the state courts decision and in this case the state court's decision was a denial of relief under the chronic claim and so if chronic didn't even apply in the st instance that is a decision or reasoning that could have supported the  honor but then even stating that one step further because there is no supreme court precedent holding that chronic applies in this instance the precise contours of chronic remain unclear therefore the state court had broad discretion in adjudicating the claim and its decision determining that chronic was not violated in this instance was not objective leon reasonable under and and in addition to that your honour's masako holds that in this over the competency report whether they physically met the michigan court of appeals held that they did go over the competency report together and that's due to that's presumed cracked under of not providing counsel of a critical stage i don't think that he subsequently looked over their parts i just want to correct that it was prior to the competency hearing he saw the report with his counsel and i think this would be a very different case runners if we didn't have the defendant's statements on the record that he did bring view the competency report with this counsel and wanted to stipulate to its accuracy and if we didn't have counsel calling the court and saying we stipulate to the accuracy of the report hearing but i think we have to view it in context and that's that the court had initially stated your counsel to call the court and told me that their due to a mix up they weren't able to appear today but they want to stipulate to the by the state counsel didn't say oh the prosecutor is preventing me from coming today and so under that case that would prevent  there was no counsel physically present but he had the benefit of counsel before and after and he had the benefit of counsel's advice during the competency hearing as to that you should stipulate we should stipulate to the accuracy of the report and proceed to trial you have the benefit of  hearing but i think that when he has counsel's advice prior to the hearing when counsel calls the court and tells the court what their course of action is going to be and then all the defendant had to do on the record was say yeah that's what happened and the court found that based on the attorney's call to the court and the defendant's agreement with that is what happened work for the defendants the hearing to the issue of his the hearing that he was mark or that he didn't argue either way at the hearing he said that they wanted to accept the report which i suppose would be an argument that he was competent because the report did find him competent  and proceed to trial you know one thing counsel advice and you can see that nothing about your position the kates prohibits him from being ineffective assistance claim that's other words the it's maybe it's ineffective assistance because they had a scheduling screw up or maybe it's ineffective assistance because they're lazy they don't care enough about all of these can still be doing effective assistance claims the question here is whether we have a complete and get the chronic presumption that's correct so i mean i think it's worth putting that in context and i don't believe that there are as i stated that there was a complete denial given that council gave mr clarke advice prior to the hearing called the court and it's unclear on the record what counsel actually advise defendant related to the hearing we don't know what legal advice we gave or do not give a clear the defendant in advance of the competency hearing hearing but due to a mix up were unable to be present so they called the court to tell the court how they were planning on proceeding during the competency hearing so unless your honour's have any questions for their questions i'll yield the rest of my time and just because i think that if these counsels not present somebody has got to represent him at the competency hearing there has to be adversarial testing of these kinds of things is where you can call them the you can call the counsel they don't have to physically be present no one says that's the th amendment denial he communicated that he's spoken to them and the key line here is the th amendment requires in a criminal case they get a lawyer ok so that's that's clear everyone agrees with that if the state the state prohibits the lawyer from being there that gets you in chronicle and because it's so severe they're saying we're there doing something the state court the state prosecution to prevent the lawyer from being there if you're not in that way and which is this case then you can have a denial because the the lawyer the state guy doesn't do his or her job maybe that's what happened here maybe that was pretty sloppy not to show up at the hearing or having a scheduling conflict but that's just not a chronic claim that's where the lawyer messes up and this is time if we're going to have the competency hearing somebody has the adversary we test the competency and if it's not going to be the counsel because they're not present then it's got to be the defendant we've got to ask is he competent to represent himself and then wait a nd this is a competency hearing how do we answer that question but that overlooks the point he had talked to his counsel and we don't even know what has come to such all we know is that he said about the report that that's how about it was interpreted which to me is the only thing that makes sense out of a statement i don't have to respect that finding i don't think the record supports the cease court's finding your honor i think the record only supports that he went over the competency hearing and he wanted to go to trial which is no question he did he had been incarcerated for nine months and if you look throughout the record of the august st hearing he's saying get me to trial get me out of here but that's not necessarily a competency hearing and he wasn't competent to do