merits the government doesn't seriously contest performance because counsel was completely unprepared for sentencing when judge miracle asked him how long his medication case would take he responded i have no idea judge i didn't get into this is a death penalty case i don't know anything about death penalty litigation and judge miracle himself concluded the council's performance was deficient so the only issue at stake i prejudice and that's easily satisfied for both per se prejudice and actual prejudice per se prejudice applies if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing and that's just what happened here counsel didn't know what to do he was unprepared and so he simply waved a white flag and did nothing at all the only thing he said to the jury and i thought he would present no argument and he did that in a way that a y harm the it's case he suggested the jury that any mitigation argument would simply be a waste of its time this was a complete abrogation of counsel's duty to subject the case to meaningful adversarial test and the court convicted him in absentia his counsel mistakenly believed that the conviction was invalid and so he declined to participate at sentencing just as in this case he a maybe mr phillips was fine with i'm not saying anything above and beyond what he said well first of all counsel couldn't have had a strategy based on that meeting because he never  the facts and you never best learn the walk before that meeting so when that meeting completely unprepared so even if if phillips had said well first of all the state never makes this argument that philip said that it's contrary everything we know about the case that miracle itself said there was deficient performance see away from this court suggested there was division formants even if phillips had said i'm ok with not presenting any argument that would have been an informed decision by the client because his attorney was completely unprepared and couldn't have informed him about the consequences the important consequences of making that decision so deficient performance isn't  issue is prejudice here are your your appeal is asks for re sentencing ok i wonder if the law in kentucky's is still the same with knowledge it's and seem to you agree that the upon remand the what could the best hope would be for that sentence that twenty five to fifty years after twenty years so if he received life no parole for twenty five years the next one down would be parole possible approach twenty years the lowest possible sentence is a term of years and twenty to fifty years so we could be sentenced to the lower sentence is twenty years which  we're looking at other cases would authorize parole at seventeen years that's where he is right now he's been in prison for a possible seventeen years so best case scenario under the statute is he's eligible for parole immediately and would be released after twenty years twenty five years could have received a marginal lower sentence if counsel had simply raised the statutory mitigation factors that were available on the face of the trial record that alone would raise reasonable probability that the jury would have imposed more lenient sentence you know that mr ferguson says oh for pete's sake those those concepts that you're bringing phrases are there's no way that he could support any of those when you say about that that's mitigation emotions severe emotional disturbance voluntary intoxication we know that could be offered right and what about moral justification just consider two of those that basis that phillips was heavily intoxicated that he was extremely upset and that his decision making was impaired because of those facts if he had done so he could also have argued that the kentucky legislature has already decided that jurors should consider those factors as mitigating factors during sentencing if you don't so there is a reasonable probability that the jury would impose that marginally lower sentence of life in prison that's especially true because the jury was already inclined to impose a lenient sentence and the district court's reasoning and the crux of the government's i wasn't clear about how the record reflected that that i thought that their deliberations were pretty swift where did we get this notion that they were inclined toward a lower sentence questioning what was it well the jury already imposed the most lenient sentence that the prosecutor with the lowest of those sentences so the district court reasoned that there was no prejudice because for that very reason because the defense didn't receive death and that's the government's argue on appeal that's not how prejudice works prejudice asked whether there's a reasonable probability of a lower sentence not whether the defendant could receive a worse sentence was pretty court held this much in global versus united states where it held that an increase in even one day in prison time is sufficient for prejudice in a court in glover didn't ask whether the senate's given worse in fact the defend in that case was sentenced to somewhere in the middle of his guidelines range and the court held that that was prejudicial because he could have had a six month lower sentence to the jury also recommend consecutive sentences here my correct about that that is correct that was a mistake in the judge said the census had to be concurrent i'm just wondering if that maybe is an indicator that the juror jury would have been inclined to impose you know something less than the lowest sentence i think the jury just misunderstood what the jury instructions  were and i think that the standard for stricken prejudice is well there's a reasonable probability of a lower sentence and even if there is some probability that a jury would have imposed some different sentence there is also a reasonable probability of a lower  if there are no further questions i will reserve the rest of my time for about  is our position that i want to go through this in steps our position is that this is not a chronic case that this is this is this case subject to strickland analysis and  chronic is really about the complete desertion by an attorney of client from start to finish well there does seem to be some indication you could leave them be or desert them for some stage but but but yes i mean it's all tied together here clearly there was a extended  phase of trial counsel was clearly prepared for that and equally clearly very disappointed when the guilty verdict came back for two for these two intentional murders i think that's what that's what led to that comment no not really ready when the verdicts read judge says are you ready for some of the face it no not really i mean i think he was disappointed  yes so if we focus on the sentencing phase and in terms of chronic which talks about the absence of any adversarial testing of the prosecution's case what what did mr charles do here in the sentencing phase  you don't buy what i said in the go face so i'm not going to waste your time anymore or in the sentencing phase you pointed out that there was when when the verdict comes back says i'm not guilty is are you ready camp says no not really he says i need to consult with my client and his father so they go back and they consult for forty five minutes he does say i don't know anything about the death penalty geisha i did not get into this case is the death penalty case however that doesn't mean that he's not familiar with the penalty phase of the trial it does not mean he is not familiar with mitigating evidence it just i mean i think you've got to take him at his word not that familiar with the penalty litigation but that's mitigation though comes in it non non  death penalty cases too they discussed the recent discussion of mitigation that well i should say the court when approaching that closing argument talks about well you've talked to your and father and then they come out the commonwealth really didn't do much in the way of the penalty phase either i mean there is an opening statement where the commonwealth says  that we believe in in essence we believe that the three aggravated sentences would be appropriate there is no evidence by either party the commonwealth does a closing statement where again it appropriate sentences here we're not going to tell you which one but we do think one of those would be appropriate the commonwealth's closing argument and then the dishes to mr phillips counsel stands up and say is well clearly i have not connected with you jury have not communicated with you and i'm not going to waste any more time i'm going to sit back i mean i think he was saying don't penalize my client for my failure to communicate with you i mean this was a capital that mr charles did anything at all connect with the sensing phased in and terms of investigation and exploring mitigating evidence other than whatever conversation he had with mr there are three subjects that were brought forth in the guilt phase of trial which could have been used it any l a just should have been used to argue for mitigation so i would suggest that that thang is evidence that you know that it was thought al that there was a reason to bring forth this these subjects in the guilt phase however no the trial court offered mr philips the opportunity to present  in essence what would have been presented to show you know that they could have been presented that would have shown prejudice so what was not presented in effect and the really wasn't anything there was an affidavit by a  gation specialist who say that these things that were developed in the guilt phase i would've i would have explored those little bit and we would have the extreme emotional disturbance the moral  just can't remember a death penalty case where counsel took no action at all to investigate what things that might persuade a jury to to recommend a sentence less oh i don't know what i want to make sure we're not in the chronic we're alone that we're over here in strickland and so i think porter versus mccollum is important in that regard no investigation and minimal it was very blah as a kind of evidence of mitigation but you know that's something as opposed to nothing well and here i would argue that that it would not have mattered but here this guilt phase stuff was developed to some degree but i would argue that that is that it would not have mattered and that's where we get to the prejudice so the disturbance the moral moral riot or more world justification in the intoxication they were developed limp in unlimited manner that there is no evidence that he was in any sort of been rage or inflame state of mind there is no way of an intervening sort of triggering event there was no evidence of any sort of need for self defense or protection of another this was an argument he shows up at an osa lee maggard home at twelve thirty at night from the evidence we only know that there were three mr phillips says you were paid partly by stepdaughter partly by wife and if and then the last thing is mr maggard says well let's go get your stepdaughter and we can work you know we can find out the result of this in effect and that's when the shots begin and so of the evidence is no one flame my state of mind no one read state of mind the heat there was evidence that he had something to drink previously in the evening but we're not we don't know the timing we don't know how much we don't know if he was intoxicated there's no testimonies to that end and then this moral justification there's no reason to believe that they had anyone was threatened here innocent party and yet she is dated from a hail of bullets so would you be making the same argument if he had been given the death penalty i would i would most intentional murders one victim from the evidence one victim completely and then sent park so any justification that might have some mitigating aspect towards the one victim mistretta maggard have nothing to do with ms so i'm not better now if you're saying that you saying that was the the lawyers strategy that charles was exercising strategy because he didn't really have an answer yes to some extent he was throwing by saying i failed to connect with you and i don't want to waste your time i don't want to make make you mad at my client he in essence was thrown himself and his client on the on the jury's mercy so yes it was a strategic plan now it may not have been a plan that other that many other attorneys would have followed but there was thought to it he did consult with mr philips and mr phillips father and so yes i've i believe it and i guess i should add part of mr philips he wanted to excuse himself from this penalty phase after the guilty verdict on me i think it's pretty clear there was a lot of disappointment that that the jury had found guilt now from our standpoint there is plenty asking the jury that there are five sentences here and there are two that are lower than the one that as i understand it they in that up recommending one of which is this twenty to fifty years but i am saying that what it was a strategic choice it is not a chronic case i'm really arguing about prejudice under strickland there is no proof that there was prejudice mr they could have gotten twenty to fifty years if they'd given the term of years they could have been they could have been consecutive and consecutive to seventy years which is confusing but so each sentence each crime could have gotten twenty to fifty if they'd given thirty five three they could have been consecutive for seventy he did get life without parole possibility for twenty five years and then there are death and life without parole at all so yes they gave him the link at the least onerous of the aggravated sentences but there's approaches case the standard under chronic indulgence cone is not abandonment it's not desertion it's when counsel entirely fails to subject the prosecution's case to meaningful adversarial test and that's just what happened here he did nothing he stood idly the case is up frequently separate the trial phase and the sentencing phase this is the routine application of strickland in this country and these contacts is courts ask what happened sentencing and don't go back and say well there was no good counsel at trial so that's good and open ok says that i don't think that's what the question is whether what he did was some form of representation so no what he did was not any form of representation again the standard is under chronic is did the entire earth fail to subject the case to meaningful adversarial testing he didn't do that he stood stood there just like in miller versus martin he stood next to his client and did nothing he told the jury i'm going to do nothing and he said that in a way that harmed the case by suggesting it's just going to be a waste of time if i do anything so when counsel does nothing says he's not prepared and says i'll just be a waste of time that the these mitigation factors apply equally to her to both victims whether phillips is drunk applies to both victims it makes no difference if counsel had simply presented act so that's a really good thing for the clients and on the court so we do want to thank you for taking the case in this capacity and for your representation and again we appreciate both arguments today thank you  case will be submitted and you may call the next