negotiate a guilty plea to criminal drug conspiracy predicated on delivery of a controlled substance and that is indistinguishable from going to negotiate a guilty plea the only supreme court held to be void n p r white just as there is a single offense of first degree murder which has mandatory sentencing enhancements that apply depending on the extent to which firearm is used during the crime so is there a single offense of delivery of a controlled substance which was the object of the criminal drug conspiracy here and that offense has mandatory sentencing han murder that depend on the acts the amount of controlled substance that was that of the supreme court held in white that these types of sensing enhancements are mandatory with a guilty plea if the factual basis for that plea establishes the facts that triggered the enhancement even if the parties intended to reach a plea that did not include the enhancement so just as the factual basis in white established the use of a firearm the factual basis here which was the detailed proffer that mr grech of signed as a stipulation established that the be heard to complain about it later on well the same thing could be said of the defendant and white the defendant there agreed to a guilty plea that certainly benefited him that was less than a minimum in the defendant was allowed to vacate that plea and it's not what he was district well established in a long line of case law that a void order is not subject to procedural parts that can challenge to avoid judgment can't be forfeited and it can be raised at any time either directly or collaterally in the trial court or on they certainly didn't and it is that's an issue that is pending before the court in people versus smith which much like people says young was a case that addressed the p p r white issue also addressed the retroactivity and al you comment on that well i believe if you look at the statutes they're structured very similar to you if you have a single step for a provision for first degree murder and the court of white relied on that very heavily in finding that when a defendant pleads guilty to that offense degree murder that establishes deliverables substance within that single offense you have different gradations of the offense like first degree murder depending on the amount of controlled substance used and so if we apply the reasoning of white is when you have a single offense with gradations the supreme court in which the court said that a sentence that that was first imposed as part of a plea agreement that when that sentence was less than the mandatory minimum for that offense the clear agreement was poison had to be vacated so i think the the of the case on the line of case like should be looking at is that twenty five years of of consistent precedent finding that guilty pleas in this situation which i know this is post conviction but after the sentence it was never an emotion at that versus roe there are also several poker it's from the early two thousand holding the exact same thing so they may have thought what they were doing was fine but they should have known that under the laws that existed then even before pure white this wasn't permissible  retroactive application therefore you lose here that's correct so now the question becomes if the court united states agree that the cited later comes down the set as it's a new rule constitutional ban vacation but we say that that's a new rule from constitutional standpoint and you're not arguing this case or the oh my constitution you're right this case is strickland which is a federal constitutional issue offering a more expansive remedy for a violation of that right when you allow it to proceed in a state cloud cd so you're not changing the nature of the federal constitutional right you're just offering a greater remedy than would be available to a defendan he kentucky state court for that determination because it hadn't yet been addressed in the for that's right i know the court but they did give some guidance about what the standard would be for showing us what they said they recognize that deportation is often it is a do have to work at the factual circumstances particular for this case right and what the it said is that for some defendants it may be avoiding deportation might be far more important than any of that actual jail sentence and because of this had an absolute value to advise relative to deportations an absolute that depends absolutely that you have to look at the facts of the figure case to determine if the different prejudiced and that what they said about that is the defendant has to show that would be rational circumstances to plead not guilty and i think in a case like this we have a client who was around the age of sixty when he was the point and released from prison in the reporting he's lived in the united states since he was thirteen his entire family h children his grandchildren his wife and his helpfully mother are all in the united states so he's being separated from his family he has no family that he knows of and italy that he's close to he has fairly serious health problems at his age heart problems and some other things and so he's been taken from his his doctor the support system of his family and there's this is a very severe consequences democracy after you did a lot and i think collateral versus direct consequences issue yes and how it women did it in the sense that have clearly held that that distinction doesn't matter for counsel regardless of whether it's collateral draft council has a duty to advise them and we counsel fails to do so that is the official and we have that here we have affidavits that must be presumed to be true in which defendant and his attorney both acknowledge that this was never discussed counsel never told him that he would be deported and if it's truly mandatory for a crime like this also the defendant loses the right to vote when he from your family and the country but that's not the issue the issue is whether or not you can leave this country as a result and who knows where the family is that's true but the consequence of deportation being removed from one country  the state's ability to prosecute has been compromised i think the state should at least have to prove in the specific case that they have is simply not appear white issue this case is entirely distinguishable from pure white this guilty plea is not void the factual basis stipulated to by the parties the parties stated that it was contained within the charging document defendant pled guilty in this case then to conspiracy based on the delivery of a controlled substance between the amount of fifteen and one hundred grams the factual basis can be separated out from the proffer that was a multiple page document over forty pages so we can pull out that specific delivery between fifteen and one hundred grams and there is no pure white issue at all to find its guilty plea in this case was entirely proper it was what all the parties agreed to after four o two conference this is what the state wanted this was what the defendant wanted and this and there is a delivery exact amount is eighty six point one grams of cocaine on feb twenty seventh two thousand and one by coconspirator james jarvis so separating out that  entirely proper this court does not even need to reach the issue of whether white is applies retroactively by finding that this was an entirely proper guilty plea the parties amended the indictment and that's reflected in the trial court to the defendant he advised the defendant your pleading guilty to conspiracy based on delivery based on this amount you face a sentencing range of six to thirty six can extend the term and defendant sentence is within that term and entirely proper have a collateral proceeding defendant has not raised the issue of whether his sentence was void until an appeal from the dismissal of his conviction petition he doesn't even raise the issue in the petition itself this court can find under people versus young that at this point given the amount of time that has passed defendant should be a stock from attempting to rescind his plea where he has already received the benefit of his bargain with the state  and donaldson the court found that that defendant sentence could be reconfigured even though it was boyd it could be reconfigured to better approximate the intent of the parties this is all under the guilty pleas are contracts and so under contract law we can either reform or we can to stop the defendant from resigning it at this point again too much time has passed the defendant is now in italy the benefits i'm sorry the burdens that would accrue to the state at this point for make it very difficult to retry this case after this point and there's been no injury to the defendant he got exactly what he asked for he asked for seven years he got seven years  based on his claim that a sentence is void it's entirely separate that's the result of him not being advised of the immigration consequences not as a result of him receiving the sentence that he asked for and turning then to defendants first and second arguments it's also clear  defendant is not entitled to any relief the dia did announce a new rule of law the united states supreme court clarified in china that is that just not apply retroactively and under the law at the time it existed claims of ineffective assistance of counsel based on a but the amount here was below one hundred the amount was eighty six we can separate out from the state and the parties stipulate to the factual basis as contained within the proffer contained within the proffer is that amount especially that's not a new or novel argument that has been recognized even prior to donal's and the downswings probably the strongest support for that position what's your just very briefly on your first like to address the approachability of donaldson there they held that a plea to i believe concurrent sentences could be reconfigured where they were mandatory consecutive by reducing the amounts of the constituent sentences to get an extend donalson in that extreme a way would be inconsistent with pure white home because just like in pure white the defendant there got the benefit of his bargain but it was a void bargain so it's invalid they were able to reconfigure donalson for certain amounts and this that's exactly what the factual basis had there may have been a delivery like the state said of something less than one hundred grams but there also in the factual basis was very clearly a delivery involving different that was more than and as long as lower amount is fifteen or more but less than one hundred and then the next one up is one hundred or more but less than four hundred social one hundred this is a yes exactly so if it's greater than or equal to one hundred and