greater number of criminal history points such that the district court felt compelled to find at the minimum mandatory sixty month sentence applied applies scuse me with respect to the two convictions the first one is the two thousand conviction  overcome and he has the burden of making an affirmative showing to overcome that there is a presumption of regularity in all instances in this case the defendant has met that burden of preponderance and has shown by affirmed by an affirmative showing that there are that there can be no presumption of regularity in this case and that what actually prevailed in this case with respect to the two thousand conviction is irregularity that no what's her name was present for mr frazier appellant at any point in time with respect to the two thousand conviction that show much of anything it is true judge that there is not an affidavit from mr frazier that went to the district court that said i did not have counsel tactically based on the court's previous there were check marks for court appointed attorney having previously been made and the distribution box for the judgment shows that p t which is obviously the public defender corrector to try to answer the first question is it was valid to the court to the district court in the district court never objected to the fact that mr fraser claimed and certain about of the court that he did not have counsel at any time for the two thousand conviction with respect to the specific findings of the state irregularities all the way across the board and to be more specific to the court's question is that those irregularities happen from the very beginning the district or the city court judge in this case as i'm going to appoint an attorney is some presumption of regularity but from and that's in the initial hearing on february twelfth of two thousand and four what happens after that is all completely irregular there's no appointment for mr frazier wells the disk records show that there was appointment and that the check box is checked for appointment and there's a handwritten note that says previously a point in the box for distribution of the judgment is to the public defender i mean the said i'm appointing counsel four days later mr fraser is back in front of the court and there's no attorney present for him such that well we know that there's no attorney present for them because the court had to check the box on the february sixteenth  appoint counsel previous appointment made and there's no reference to an attorney being present and there's no box that says attorney present well and i think that's another point with respect to the presumption of regularity judge and i'm not conceding that th is some evidence in the record that would imply that that i guess would imply and that's the best you could say is implied that there might have been in the record so that you could only imply that there was an attorney appointed the record is not so anyway then  what i think is the affirmative showing your honor is that counsel went back after the percents report said i'm counting these convictions mr frazier indicated that i didn't have an attorney counsel went over to the court file and the court file is completely  d of the things that would be regularly found there's no notice of appearance from counsel there are no filings from actually any indication that that would be regularly found in a record in a city court arizona ten years ago same question was asked of the judge judge please from your view of your records from your review of your regular kept records please indicate whether mr frazier have an attorney in the two thousand and two thousand and one case what the court clearly said by looking at the records which if they fell under a presumption of regularity the court should have been able to clearly say in both cases he had an attorney but the court didn't see courts said into the sky i guess i put it this way the city court in two specific in completely refused to rule that there was an attorney present for mr frazier on the two thousand case however when the court looked at the two thousand one file your honor the court clearly saw and noted in that first minute entry that there was an attorney present for with respect to the two thousand and one conviction which is what's the affirmative showing is that there is no other reason for the study for the city court judge in the two thousand case took not responded to the first motion requesting guidance on  and certainly why the city court did not respond in the motion to clarify saying judge please give us some indication of whether mr fraser had an attorney and there's just no indication and i think that that's the affirmative showing what else could  well i think that the way you have to interpret that judge is that that's set aside without any limitations placed on it while the limitations placed on it by the city court to some remedial purpose there is no the city court clearly could have cited the arizona statute that allows for set asides for remedial purposes that would have taken that set aside and squarely put it under application you know ten of the guidelines five failing to make any clarification or limitation of the basis of the set aside can't infer the state court judge said of the side because of the arizona statute that question was specifically posed to the city court judge why did you set this aside and the city court judge when he said or refused to give any basis without any basis and that goes to the district well i guess to respond of the court's question is is that i don't think that that we can assume that the city court judge made a distinction between set aside vacating the conviction or within three words of each other three or four words in each other  judge i guess the question back is why didn't if the if when the judge got the motion to clarify the order which clearly spelled out the differences between application ten and showed him the importance of making them some distinction why didn't the city court then make some that there was by a preponderance of the evidence something making his prior convictions invalid so all go on to the next point we have two fires that are in question here for you the first one was in focus on is that the guidelines say that we don't care what you call it unless it constitutes an expungement which is only for purposes of legal error actual innocence or constitutional invalidity and it makes a difference if it's set aside we don't know because the only thing that was cited to the city court judges in authority was rule twenty four point four which simply deals with clerical mistakes the district shared he didn't seem to see the difference between aside i do something with a conviction all mean more or less the same thing getting rid of it somehow for the guideline purposes i  real question is whether that means you have gotten rid of it for legal air for reasons related to legal error or actual innocence and whether that means it's been cancelled out really because as i pointed out in the brief little of the other cases where they have examined what has gone on and said no you don't get to have this prior conviction thrown out were situations where there had been some kind of clear of state procedures which had not been followed in guthrie it appears that he did do what he was supposed to do procedurally he went back and made the appropriate motion and said and therefore appropriately received the release that he that we have thirteen nine zero seven would not give him any relief that because it says you can still use the priors as in fact a prior conviction present and we have the city court acting and the presumption of regularity to which you refer what is that what we make  mean in order to be expunged so that you take it out of the mix for these for the sense and purposes it has to be based on these particular purposes in other words of originally the city court but instead in the sense of having the authority to grant some kind of remedy should've been rule thirty two point one which no longer is timely twenty four point four doesn't apply you  are there any other questions