act after hearing there were three claims of alleged that are also taken up on appeal they all fit they all relate to in effect of assistance of counsel the to counsel was ineffective for failing to object to the admissions of text messages which constituted the heart of the state's case and three counsel was in effect of for failing to object to certain bad acts  for purposes of this argument were going to be primarily concerned with the st claim that counsel was ineffective for failing to object i'm sorry failing to properly advise the fenton has to show but for the ineffective assistance of counsel there was a reasonable probability that the plea offer would have been presented to the court and the defendant would have accepted it the nd prong is that the court would have accept its terms in the rd prong is that the sentence under the offer terms of have been less severe than the judgment entered all three of these problems are easily met as to the st prong  have a letter from the defendant to the his attorney indicating that he wanted to explore sentencing options we have we also have him testifying which court importantly noted was deemed honest testimony truthful testimony that had he been accurately advised of the true sensing consequences he have accepted a plea rather than go to trial and he the court here was hung up on that note notion that mr black indicated he didn't want to go to trial based a something he didn't do however he clarified in his testimony that that was based on the understanding that the sense you was facing at trial was comparable to what showed remorse he would have accepted it and the judge said that after the trial being exposed to all these text messages was what prompted him to give a much more severe sen no idea that that could even you know that there could be findings at trial that would lead to the sixty year operand as opposed to the thirty year and you're correct that he seen that he gave testimony that he didn't under that he understood that it was sixty years upper and however he also was told by his lawyer that he would be facing about fifteen years total if he went to  grossly off is enough to constitute prejudice and then the rd prong which i own which i then get to was that the conviction or sentence  trial court as i mentioned got up hung up on the qualified flying language or actually ignored the qualifying language and then also seemed to ignore laugh nurse admonishment that it only has to be reasonably more likely that the plea would have been accepted in fact the language is used the chances of prejudice need only be better than negligible i don't know when i read over these facts this is not just a beer allegation we have a letter from he had a letter from the trial counsel indicating that they use different alternatives were discussed with however he was thinking that he was only going to get fifteen years the supreme court says that the only supreme court says that you can always refuse to plead and go for a full quibble however the decision so the other question what are the other before we continue on with this line of this particular argument though i don't want to spend too much time on the nd and rd elements of the ineffective assistance of counsel and the  messages and the bad acts were not discussed on direct appeals therefore forfeited however a proper and important now analysis as we all know and an ineffective assistance of counsel claims whether there was a reasonable trial strategy of all you couldn't know whether there is a reasonable trial strategy involved in failing to object to these text messages or these bad act testimony without actually asking what his testimony was what his what his trial strategy was so in order in fact many courts say raising ineffective assistance of counsel under appeal like this is fraught with peril for this very reason because if we it's therefore it's not barred because there was evidence to horse the record that way and those two questions the only brief issue i want to indicate is that the  in regards to the rd ineffective assistance of counsel claim is that defendant had argued that i'm sorry defense counsel stated that his trial strategy for allowing bad acts has known to come in was that it was fantastic all it was imaginary however failing to object to the state's argument in closing that he the defendant actually engaged in a sex act with his daughter that's not fantasy that was an actual act it was an in previous act and i mean putting aside and in fact of a sense of assistance of counsel in plain air pressure prosecutors  duty not to produce false evidence and if they do produce if they have to correct it so there was no reasonable trial strategy for not objecting to to an actual act rather than an allusion or some sort of they just cannot on ring and i can't think of any bell worse than that falsely accusing the defendant of engaging in a  in some the constitution guarantees defendants effect of assistance of counsel and the plea got bargaining stage and that a defendant a defendant ultimately has that makes a decision it's his decision to go to trial and however that decision has to be a informed one it cannot be uninformed in here there was ample evidence that he went to trial thinking his sentencing exposure was fifteen years when in fact it was a de facto life  to fifteen and mr blocks contention was that he did not accept the q he did not accept those offers because his trial lawyers said that he would get the same sentence if you want to trial and was found guilty which was grossly inaccurate obviously so i hope that answers your question to quell  mean there was one offer a fifty year act the offer i don't remember the fifty years i do remember it went all the way down to fifteen or twelve years and that his counsel told him that if you went to trial that is where the sentence would end up being if you was convicted that the fifteen year offer was made and that he did not advise his client to take it and said at that point that close to trial he would not advise his client to take it that  but the question was did he provide him with the range he could expect after a trial and i believe he denied it and i think i think that's correct your honor i believe you're correct so the trial judge here on this petition is or could have accepted mr black's testimony on that point or mr males testimony that's true even if you accepted mr males testimony that's still an adequate  in order for the defendants to six it succeed at a rd stage hearing in this particular issue he must show a reasonable probability that absent his attorney's deficient performance that he would have accepted the plea offer  to there both while the judge thought at the rd stage i said that both male counsel male and the defendant both provided truthful testimony the record is clear that the judge in this case believed that that counsel males testimony was the more credible and believable testimony against justice stuart doherty just said male testified unequivocal that he did not tell the defendant  that he would expect to receive a sense of about fifteen years if he went to trial was convicted male was was clear on that point he said never you never gave an estimate he never indicated the defendant what he might what he thought that he would get sentenced to if you were convicted now again obviously there's no question here that counsel provided deficient performance regarding the the range of of the max range that the fan it could receive in its brief that the difference between going to trial of one th year with sixty and not want twenty is relatively insignificant the defendant was thirty one years old he was looking at sixty years that was basically that's basically a life sentence  even at eighty five percent of sixty still a life sentence so i think though the record refutes any argument the defendant made at the elementary hearing that he would see if he had learned of the proper the actual sensing range and again as the trial judge stated below in his ruling a critical aspect here is the defendant's testimony that he was not going to get to do something he didn't do and i think the record shows based on the the progression of the plea offer that he was given that completely contradicts his testimony that he was going to plead guilty again he was given offers of a quarter his testimony fifty years which was rejected kind right out right off the bat twenty years that was the fact that kind of right off the bat then according to the friend and there was a little bit of misleading testimony whether it was twelve or fifteen years that their offer but i think we're going to go if it was twelve years it seems like that was the general consensus below and you know the defendant testified that bet twelve year offer was on the table for quote quite a while and quote before the state ended up retracting that offer state summits that if the f was going to plead guilty in this case based on the evidence that that everybody knew existed and his test text messages he was going to take that's called your offer especially in the fact it was on a table for quite a while you believe he was going to plead guilty he didn't take it you knew what the evidence was i'm sure he talks with attorney about the case that the prosecution had against him a fact that he didn't take twelve years and was on the table when he was looking at sixty i think overwhelmingly establishes that even if he thought he was getting one hundred and twenty that he wasn't pleading guilty in this case you had plenty of time to take a you know in hindsight looks like a very good offer twelve years didn't take it and then when the state retracted it the state came back with fifteen a fifteen year offer and i think that was on the table it's all just for trial or  reason he was not prejudiced by the defendant's performance of improperly informing him of the max range that he could got in this case and the state believes that the trial coun while well perhaps that was right for an objection by my counsel male defender was not prejudiced by that decision in this case based on the overwhelming amount of evidence in these text messages and the testimony that was presented trial a defendant was in fact guilty of the charge defenses again i'm not going to rehash all of the text message testimony and person testimony that was presented i do that quite extensively in my brief and quite frankly don't want to speak about the evidence in this case anyway but the state's emits that clearly a strong body of defense counsel gave a range for the sentencing to expect after a conviction that's belied by the record there is a there's a letter in the record from counsel to his client that indicates as much of this and as much as a sentence was unexpected and outrageous i continue to believe that no one would have been to subpoenaed such a sentence from judge broad what's the inference from that the inference is that he he's told the he told his client exactly what mr bloch claimed at trial and that was that there was an expectation that a sentence would be given that was close to what was being offered by the state now giving going back to the standard which is that probable probability you don't be negligible with that letter just by itself i don't know how that how the how somebody passes the blush test that is i don't know how somebody can make the argument without blushing that it's there's not a least a negligible that is enough that's negligible so therefore prejudiced is established here you know other quick note i'd like to  indicated that defense counsel again indicated that please were open for quite a while well that's true but he was told as i just mentioned by his trial counsel that he would get the same sentence if you went to trial and there's evidence in the truck counsel's own hand that that was indeed indicated to the defendant also the defense counsel i'm sorry it's team counsel and discussed about all the evidence and how that based on all that evidence he must have wanted to go to trial however also came out at the hearing is that the defense counsel was not clear on what accountability theory entailed and what kind of proof was necessary to show that it happened that factors that that factors into the situation as to the defendant's view of the evidence so that aside though the evidence here that defendant was did not go to trial with a reasonable understanding of the sentence he would be facing after a conviction is certainly above the very low