i would like to reserve three minutes for a but when thomas crandall pleaded guilty in two thousand and seven the trial court and defense counsel both told him erroneous lee that is sentence would not include a five year term of post release control more than three years later ohio courts added a five year term of post release control to his sentence mr kringle did not discover the error in his sentence and his original sentence too lenient until the or how supreme court decided the carnal case in two thousand and ten the one thing that i've been scratching my head a little bit about is trying to understand the stakes of this difference ok so the most important thing obviously is the sentence which was pretty severe and so the options are it could have been long sentence with parole long sentence with parole plus post release control or a long sentence plus just post release control for those the types of options well what were the actual stakes here how does this hurt him what's the way in which post release control is so bad that it would even get into sad like to now be tried for a pretty lousy crime right well we have evidence in the record that mr kringle states that he would not have pleaded guilty in two thousand and seven i actually ask i'm trying to figure out the difference between post release control and parole what what is so bad about this well under ohio law poso is control is part of the maximum penalty it is legally different from parole parole is a form of early release for post release control actually imposes an additional the parole is super of mean what i think of parole is like what the federal courts call supervised release your you're free but you have a probation officer and you have some restrictions on what you can do and it sounds pro post release control is similar but i can't figure out if that identical or if it's not identical what's different right well we're not sure exactly if we don't believe it's identical post release control imposes severe sanctions for failing to comply their supervised release the same way i see well under a parole where you could be brought back in and that's current your term and that's the same with post release control additionally if you violate post release control the maximum penalty under poster is control is to be imposed for half of your original sentence so i mean the most compelling part of your argument is that something suddenly happened many years after the plea bargain and sentence yes and that's a really compelling argument if your client didn't do anything because he was a beneficiary of what had ridgeley happened and what later happens not protons is quite hurtful that really helps your claim in terms of equities as to why i didn't do anything earlier but this just doesn't go anywhere if it's not something really different in other words you would agree with me if all they did is change that a to a b and did it not proton but it didn't have any meaningful impact on your client just that would not be an explanation for getting out from under a plea bargain so you have to to make this a cognizable claim you got to show us how this post release control hurt him after ten years plus the additional penalty of post release control but what's the penalty what does it mean to get post release control on top of probation i still can't figure that out it means and that's something that i believe ohio may have a better answer to to understand exactly how postal is control allies in addition we will ask them but i mean mean i probably a good idea for you to have an answer to that as well i understand your honor and it is a good point to note that ohio courts and the ohio legislator has gone through great lengths to be able to impose post release control on crimes that are classified in the post always control statute and through other statutes in the legislature to make sure that post release control can be imposed proton it seems very important to ohio that this additional penalty of poso is control must be imposed when the crime is as time frame part of the distinction that parole would would have whatever the parole conditions were but the post release control is always five years yes it's a mandatory time frame and i don't and you don't have any understanding of how the control measures are distinguishable from what would be under normal parole that's correct while under normal parole it seems that those control measures would be adopted by the parole board at the time he was released however as you're saying your honor post really is control for the specific crime that mr crandall pleaded guilty to is a mandatory term of five years something that is with not to the discretion of the trial court or the parole board and that's something that he specifically that is specifically an additional penalty under ohio law and that he specifically was told he would not be subject to when he pleaded ok as counsel in the court that's correct both his counsel and the trial court told him he would not be subject to this exact additional penalty and that was said without any objection by the prosecutor he then cements that guilty plea based on that understanding and then over three years later ohio courts add this additional penalty to his sentence so  you know one thing that you end up with in these situations where someone's trying to get out from under a plea bargain is the client hasn't really worked through the consequences of getting what they want i take it you've talked your client about this i mean this is most people would plead to this type of crime this is not a great i don't know what ohio jury you're going to get but i would be optimistic they're going to be very sympathetic to your client your clients work through because of this so far as i understand it pretty technical change he's allowed to say whatever he would have done in the few wins he's stuck at that point now you have a trial and you have the consequences if you lose so he's worked through those that cost benefit analysis that's correct your honor and i think it's not fair to assume that the only alternatives in this case were either he went to trial with the possibility of life without parole or he pleaded guilty with the possibility of life with her all eligibility plus a period of post release control it's possible that some other combination of life with parole eligibility may have been a veil at the he's betting on the calm and there it may not be it might not be a good consequence right well your honor if we if this court grants the relief that we are seeking today it is true that mr pringle would have the opportunity either to enter a knowing intelligent and voluntary plea which could be i'll tell you this i don't think the court will accept a plea that contains these terms most judges will not be happy they'll say we're being manipulated so i think the odds are decent they'll be a trial that's what i think will happen but i you know i don't know this judge i've no idea what they'll do but i've seen this happen before and then suddenly the computer come back with ineffective assistance claims against the person sending in your shoes because things got worse well one consequence could be that your client is hoping that the prosecutor ics or i guess it's a woman would not show she should go and you don't have a witness course they could go back and drive through the trial transcript maybe but anyway that is a situation they didn't have a trial so ohio may not be able to put on as a sufficient trial as they would have at the time of mr pringle's original plea is inherent in any hay vs proceeding that mere possibility cannot outweigh the facts that are clear on the it seems to me the case has to go away but i take your client would agree that if they none proton this the other way got rid of the post release control so it was just who knows what he really thought but it was enter it stayed with the way it was originally entered which is to say sentence plus probation i take it that would end the case yes your honor it's our understanding renewing ohio law that that is not an option and we didn't specifically ask court a federal court to require the state courts to not impose a mandatory penalty under state law as that seemed to go against interests in federalism however i was really it was really a question of whether the parties could negotiate that and i realize where your position is and the question is whether the attorney general has the power as a power in the state court has the power correct and then to answer your original question yes our client would  established by this november two thousand and ten not proton order it seems to me under johnson that it is that order that november two thousand and ten order that is the factual  us your analysis of what the factual predicate is yes your honor well the factual predicate we have here is the error in the sentence and that is also analogous to johnson where the factual predicate was the error in the sentence which underlie johnson's constitutional claim here the factual predicate is the error in mr kringle sentence that his original one yes the original sentence was too lenient that's the way that this case has been litigated from your side i don't quite understand for what it's worth you get a little gate at the way you want but it's very funny to call an error that favors a defendant for any purposes defendants don't generally i would say on expected to challenge errors that run in their favor i would have thought the error was is it is in november ten when the  i would have thought the air is then because we scored into what your client says he understood one thing that thing happened he play based on that thing then that thing was disappeared in two thousand and ten so i know that it's hard to figure out exactly how you've argued this but i would have thought that's the way it would be argued well your honor we did not argue that that the court c e o a under the first twenty two forty four d one a that said that did not grant the ceiling on that issue to find that the court was not interested in holding the start date of mr constitutional claim to trigger the period of limitations on that date of the proton and it leaves us with a very strange claim well and i see my time is right up your honor may i address that issue well the strain if you have an answer yes i do this strange claim here is in fact unique and actually shows the narrow scope of the case before this court the factual predicate is the error in mr kringle sentence because that fact is subject to prove proton entry is not the factual predicate here instead we have the facts the error in a sentence which was made just there ever about by there isn't but you have to admit there's nowhere in the original sentence that's your whole point it's the original sentence to the state where there was nowhere in the original sentence there was an error in there and there was no error in the sentence in there was nowhere in terms of understanding by your client what your client thought would happen did happen what makes your client unhappy is the rug was pulled out from under him in two thousand and ten that's correct your honor but at the time that he entered it's are now standing at the time that he entered the plea agreement his sentence was erroneous that's spend all day trying to get something bad to happen your client but i'm pretty confident that's not what you're striving for but your art at a time when mr kringle discovers this error in his sentence and he does what any responsible person would do would be to correct this error and his sentence as opposed to gambling whether or not ohio courts will or will not impose this additional penalty once he's released on parole it does matter even though that his originals and is too lenient and this is a very rare case it still doesn't matter because it does affect my client when he could have been saddled with the additional penalty of post release control if he was released on parole and then at that moment time he would have then had to sock relief in the state courts and he likely before even getting relief or being able to have his constitutional claims heard the five year term of the control would have already been a that's certainly for true in this case when he started these proceedings in two thousand and ten it's not two thousand and sixteen if he had waited until the post was control had actually been imposed and he had not notified the courts himself then he would have already served that term so i think we understand your argument you'll get your full rebuttal here from the state and then hear from you again thank you you thank  court i'm stephanie watson for the warden here the warden request of the district court's decision dismissing the petition is time barred should be affirmed specifically petitioner crandell should not be entitled to a lot of later start date under twenty two forty four d wendy because the factual predicate of the sentencing err was plain on the face of the record in the sentencing entry of two thousand and seven as the court has learned just that he had no incentive to challenge that he didn't have an incentive to challenge it but is there a case where we let a time bar run when someone would be stupid to challenge it i can't presume and i am not aware of such a case i can't presume to understand the logic of mr  wouldst what's his sentence at this point what would you say his sentence is going to be for get the posting karr suresh part of it what does it really mean ten years time at which time he can be eligible for parole release served to simultaneously but your point is well taken with regard to the meaningful impact of whether or not this knowledge or not knowledge of subject to post release control would actually have affected his decision to plead guilty when his parole is a life tale so half of a life tale is still going to be a life so it really these are outstanding points that would no doubt defeat the prejudice prong frankly my understanding is that the differences the significant differences are as my co counsel explained post release control is part of the original sentence that is imposed at the sentencing and jury and it can if you violate those terms and additional term to the sentence as opposed to parole the state's indefinite term that you will be on parole for the indefinite term of life and you will if you violate any of the terms of the  eighty you can then be subject to serve the entire term of year of your sentence which again is life so just make sure i'm getting this there is a difference between probation and post release control but in this case parole and post release control but in this case there doesn't seem to be a difference or act for a form for meaningful impact and again i would would subject i just can i just say that  cut severely in both ways in other words on the one hand it makes one really want to make sure his lawyer is talk to him about this and that this is a highly technical argument that's being made and yes you can roll the dice and maybe it will be hard to reprosecute but maybe things will get worse which seems like they could with this the sentence could have been a lot worse but on the other hand what i'm struggling with is why the government given the concession earlier made why the government wouldn't say in this case it really doesn't make a difference given this lawsuit let's just undo the non proton order in other words the just i know the attorney general can't control that but the attorney general can make a request in the attorney general can make a request to the state court saying there's litigation over this not pro tunc in this particular case it doesn't seem to make any difference and given the comp of complexities of the lit we actually think the better thing to do is just to leave it as it was originally entered even if that is not illegal you know not can normally complying with ohio law than the fact is a mistake was made and initially everyone agrees with that and given that there was a plea bargain allegedly made on the basis of the mistake a couple of points ok first when conditional rights are are granted that the that is when generally speaking the the train general the  warden informs the prosecutor of what's going on in the federal case and they can ask recommendations based upon our expertise and knowledge of hey b s but it really is as you acknowledged a decision of a separate entity the state the requests but there because the requests would need to be made when we're talking about the merits of the guilty plea claim and we can't get to the merits of the guilty plea claim claim whether or not that prejudiced his decision to plea or not until we resolve this procedur aspect and i have to disagree with you the primary underlying contention that my opponent made which is that he was not aware that he would be subjected to post release control and till two thousand and ten that is simply erroneous page id ninety two of record eight point one which is his plea agreement is very plain it says i have been informed that if i imprisoned after my release i will be supervised under post release control revised code twenty nine sixty seven twenty eight so i understand that and that seems like a powerful point for your side and maybe even dispositive point but i think you have to acknowledge that there's confusion clear confusion going on in the the hearing itself you have the the trial judge asking the same question i'm asking you and our friends so no one seems to know exactly what's going on he says you know it's it's an affidavit or whatever when a court gets to the merits of the guilty plea whether or not it was involuntary it would be the question is can you avoid all this link the all the lengthy discussions all the problems with the law in ohio which in fact has you know from lennon through dresser through you know through the change incarnate clearly back and forth on the law the question becomes is there not a way to resolve it that would leave him with the parole that was a real initially given because i struggle to understand why ohio would be so firm on being sure that post control release is released control is always applied were it not distinguishable from the normal tenants of parole there is a reason it's not just winks there must be a reason for them to say you know in these sorts of heinous crimes we are going to have post release control it must mean something i don't know what that is but i completely agree any case such as a rape of a young child under the age of ten the statute that was cited that in that dream and that he signed says that he will be supervised and important and shall be imposed for particularly heinous crimes as opposed to the tell you all for the rest of wife of parole so obviously there's a distinction either in qualitative or quantitative control measures that are in acted so the question becomes can you resolve this by a request or a or or an arrangement a negotiat at this stage that would that would leave him with the wife tell you all of parole at this point i would have to say no because he agreed to plea to the statutor mandated post release control stance and he when he stood before the judge the judge instructed him that there would not be post release control and you know i struggle with saying there's a box checkmark over here on the play deal that you signed and now you stand before the court and both the judge and your counsel cited you vet does not apply but your honor that's exactly why the factual predicate was discovered in two thousand and seven because he stood before the judge the judge told him something other than back to the hardest part of your side of the case no one brings claims about mistakes that help them and no one's expected to do that that's just not there's just there's no case law for that so that means any time limit really does have to start in november tenth i just i can't understand any other way i mean unless you're going to say this was a meaningful but but but but let me ask a different question back with the problem problem solving had on which i'd really appreciate if both sides would try to where we all the time  invite invite relevant governmental entities to participate in cases so we'll ask the solicitor general's view about a case we have why is it that we couldn't asked the prosecutor their position on whether they'd be willing to solve the case simply by issuing the original order as a settlement of this this particular litigation which has just a lot of procedural who hurls in front of it right now so we've course can do that well and the prosecutor can do what the prosecutor wants i mean i think you're suggesting don't be too optimistic maybe that's right but i don't know why i believe that i have to stand and protect the procedure nature of the deepest natu  imitation for this case and for its presidential value and if you check cases and i could not in good conscience state that we're going to just forego our very strong and i believe a definitive statute of limitations argument in this case because it was clear in apparent on the record in two thousand and seven and eleven if it weren't for the the other side the practical other side of the it is if we feel that the november two thousand  order is in fact the factual predicate because it satisfies the law you know i know you make a floodgates argument but the truth is what the law says in this circumstance is that the factual predicate must occur from due diligence undertaken by the defendant a and a and resulting in a legal alteration in his own case all of which for his a claim occurred and for his will his challenge the statute of limitations the statute of limitations on the hague is before us we're going to look at the record and we have the ability to say no i don't think that it was the sentencing error that was at issue here it was the november two thousand and ten order and under that it satisfies the law in your state and satisfies the statute of limitations because it falls with n the three hundred sixty five days two points to continue when i was attempting to answer your question the hernandez case came out in two thousand and nine the hernandez case was cited to and followed by the car now case so if you're going to look at the car now car now case is the time he could appreciate the legal significance of the factual predicate it didn't happen in two thousand and ten you run the risk we don't know whether he had hernandez in the public interest to get to what i think is the real point you you acknowledge you do not have a case any case where the at pistache limitations started running from a judgment that had a mistake that benefited the criminal defendant i can't think of any no and i don't know that case either ok so it turns out i don't think that's the law so that means we're going to pick another date i don't know what it is i'm not sure how we're going to do it but i don't think we're going to pick that date i don't understand how we can pick a date where it was it would have been foolish for the criminal defendant to raise an argument that if he won would only help him so here's what i'm trying to get you to do though just assume that's the lay of the land what do you say then what do we do then if we think it's not appropriate under read part because we can't find a case under it that says the statute starts running from the original judgment what do we do at that point just help help us out what we do is your question without answering it with argument i got it i got it but let's just say for the sake of argument there's not two votes for that the sake of argument what do we do then is the case over they win at that point or what do we do that who would we do then i say if you're going to look at a different start date you can't go all the way to two thousand and ten the next start date has to be at the clerk or at worst for us the hernandez case which is in two thousand and nine trying to ask a slightly different question just for the sake of argument call it the most lawless decision ever ok i'll try we think the text of the statute in precedent doesn't permit the limitations period to run start running and tell november two thousand and ten just say that's the way it is for the sake of argument what happens to the state's position at that point what do you what do you say then we would have to calculate the time limitation if of he does file within a year of two thousand and november two thousand and ten and we would have to remand the case back to the district court for a determination of all the other procedural grounds including procedural default which these claims clearly are he would have to overcome cause and prejudice which he cannot do in order then to get to just the merits of his involuntary unknowing plead claim which he couldn't do either because again he cannot legitimately say i would not have pleaded guilty to this ridiculously sweet deal that took a violent sexual predator ten offender specification of young children under the age of ten multiple off the table that took a kidnapping charge off the table that took life without parole off the table and gave him a ten year plea ten year sentence with the possibility of parole of life after ten years he cannot in our opinion legitimately satisfy the prejudiced prong that i would not have pleaded guilty if i really believed that i was going to be subjected to five years simultaneous to my life parole it's just isn't going to happen with a man that's very powerful so i think we understand it i thank you and we request your time thank you so yeah i think just to brief points first we would like to be clear that we are happy to consider the no proton country in november two thousand and ten as the factual predicate of no shock there sympathetic i was until i heard her say everything she just said there are going to be some very angry people if you win and he's not willing to go through with this so i urge some conversations including the supervisor with the client and we'd like a communication from you that this is what he wants because the technicality of this cuts both ways and it frankly seems from where i sit bizarre that he would undo this plea deal for something that it will not benefit him at all so we'd like to hear that this is what he's hoping that this is not knowing what was going on i'd like knowledge and i like a communication that this is what he wants to do because we're not going to go through all of this if that's not what he wants to do and he wants to roll the dice so i think that's fair will provide that and that leads into the second point that i just want to be clear that judge french is absolutely correct in saying that post release control and parole are different ohio courts even stated that they think that if there is a difference how would it be different here well the whole well in this situation he if he's released on parole the additional penalties in post release control apply in addition to the parole penalties we get this language directly from their own house supreme court and the carnal case where the defendant was had imposed most of these controls five years right correct this is for control of plies additional penalties in addition to a i think i'm convinced you're right in the abstract and i think that structure is right and i think the state acknowledged in the abstract you're right the question is what does that mean here given this parole term and that seems to me to swallow this all up which has me really baffled about this the second question is are the post release control provisions more onerous so that it is a greater likelihood that he will play and and be placed back in prison for the rest of his life isn't isn't that the question and isn't that why for the more sanctions there are residential sanction it is a nonresident highly post release control well if you're getting to the you're getting to the provisions this is the issue yes does it say here's where you're going to lay of here's where you're going to report it here's what you can't have a computer you can't have a cell phone our vote is different from the normal parole provisions such day it he's likely to buy more likely to buy a light and be thrown back in for the rest of his life well it seems if the post and the post release control saying sions are applied to mr crandall at the same time then he has more sanctions and inherently he'll be more likely to violate if there are more requirements under post release control in addition to parole so the more we're going to see more requirements the more things he could violate yes that's correct and the consequences of the violations are worse than probation violations so you're making both points that's in this case yes it seems  require a way that can be the trial ations can lead to greater longer sentences when it comes to probation violations so that that the point i'm not exactly sure on parole i violation of parole violation of parole would not lead to an additional sentencing violation of parole would put him back in imprisonment for the original sentence post race control applies a more onerous imprisonment because violation of post release control communications with your client which actually from this argument makes it sound like if the lawyers don't tiredly know all of this surely the client doesn't entirely all know all this so as you figure out how these differences apply to this sentence in this client that might be helpful to then let us know whether he still is going to bring this claim and if you want to tell us in a supplemental filing how these are different we'll be all ears and then of course at that point we'll let the state respond i think that's the way to do it you can respond at that point yeah i'd rather do it than yeah thank you so thank you the case is submitted and we'll hear the next case