good morning may it please the court i'm elizabeth cook of the office of the state a public defender on behalf of the appellant in this case jacob cecil jacobs cecil's pro se petition contends that he received ineffective assistance from both trial and  at the root of this claim is a challenge to the circumstances of his nd sentencing hearing where the transcript from his st sentencing hearing was admitted with no objection from his attorney that transcript was highly prejudicial were cecil's testimony was the product of ineffective assistance by his st attorney the issue of prejudice can be readily resolved simply by reading of this court's own order issued on august th two thousand and seventeen finding cecil's forty five year sentence to be not excessive and not an abuse of the trial court's discretion this court's order relied for that finding on the aggravating evidence that was introduced at cecil's st sentencing hearing for example in paragraph three of its order this court noted the aggravating evidence of  past work as an enforcer of drug that's where he used a sawed off shotgun to obtain payment this evidence was only introduced through cecil's cross examination by the state at his st sentencing hearing and then came back to haunt him at his nd sentencing hearing when that transcript was introduced as aggravating evidence by the state this court specifically noted the trial court's consideration of that transcript when it handed down its new sense of forty five years which was really just the original sentence of sixty years minus the illegal fifteen year firearm unhandsome and thus the question of whether counsel's failure to object to the introduction of this transcript prejudiced cecil is easily answered he was prejudiced in the trial court when the court specifically relied on that transcript in fashioning his nd sentence and on appeal when this court also relied on the conduct described in that transcript to affirm his son's the next part of the ineffective assistance of counsel question is of course deficient performance trial counsel performed efficiently when she failed to object to the introduction of this highly damaging transcript at cecil's sentencing hearing and appellate counsel similarly performed efficiently in failing to challenge it on appeal this transcript should not have been considered as a sentencing factor simply because cecil's admissions at the st sensing hearing were a product of the ineffective assistance of counsel he received at that hearing at the time that he took the stand to testify cecil did not know that he could simply make a statement allocution rather than being subject to the prosecutor's scathing cross examination because his attorney had never advised him of such this claim isn't rebutted indeed at the hearing to withdraw cecil's guilty plea attorney by trent defended her strategy of having cecil take the stand and claimed that she was powerless to stop him making these damning admissions however the transcript betrays that attorney but trent made only one objection during cecil's st cross examination and when she was initially overruled did not pursue the objection she stood by and passively let him admit to prior bad acts that had not been previously introduced in the record or in his p s i with no further objection in addition attorney about trying to put cecil on the stand even knowing his long history of substance abuse mental health problems and his learning disability and limited education in fact early in the proceedings but trent doubted his capacity enough to request to fitness exams and was aware that he had turned down a favorable twenty one year plea deal because in his words god had told him to it was simply irresponsible of attorney patrick not to advise cecil of his right to make a narrative statement an allocution without being subject to cross examination and then to fail to object when the prosecutor elicited increasingly damaging testimony from him this cross examination never should have happened and because it was the direct result of ineffective assistance of counsel it should have been suppressed at the subsequent sentencing hearing the united states supreme court case harrison v united states should inform the outcome of this case although the posture of harrison was different from that issue in this case the supreme court did not limit its holding to only that fact pattern and the justification for suppression is even stronger in the instant case than it was in harrison the hearse and court reason that the defendant's testimony in his earlier proceeding was motivated not by the strength of the evidence against him but by the illegal introduction into evidence of three wrongfully obtained confessions the court noted that the same principle that prohibits the use of confession so procured also prohibits the use of any testimony impelled thereby as the fruit of the poison tree in the same way cecil's testimony in this case was the fruit of ineffective assistance of counsel and harrison the court stated that the operative question is not whether the petitioner made a knowing decision to testify but why in this case cecil did not even make a fully knowing decision to testify cecil's attorney counseled him that he should testify in order to demonstrate his religious transformation to the court but did not advise him that the same goal could be accomplished by making a narrative statement in elocution without being subject to the state's cross examination the circumstances in this case are therefore analogous to those in harrison even though the procedural pasture of a sentencing hearing is different the only case people be duncan is even more on point because in that case the defendant's testimony at his st trial was induced by counsel's ineffectiveness as in cecil's case cecil testified and attorney but trent did not deny that she advised him to testify and did not tell him that he could make a statement in elocution without cross examination cecil's pro se petition easily satisfies the low threshold established by hodges for stating a constitutional claim at the  cecil's claims have more than an arguable basis in law at the nd stage of post conviction proceedings with the assistance of new counsel he says claims can be further developed to fully articulate his assertion of ineffective assistance related to the circumstances of his sentencing hearing ultimately the remedy for cecil should be a nuisance in hearing where the transcript of his st sentencing hearing will be suppressed and where the trial court will not consider the prejudicial cross examination even if this court is not persuaded that this st issue warrants a remand cecil respectfully request that this court remand on the basis of his critical claim this claim centers on his attorney sacco miller who represented him at his nd guilty plea cecil filed a criminal motion against her after the plea contending that she had betrayed his confidences to the prosecutor in the case whom she admitted was a friend of hers in response attorney nd miller filed a motion to withdraw from representation conceding that she could no longer represent him effectively spending before the court at the same time with cecil's crankily motion and his attorney's motion to withdraw a very unusual circumstance at that point the prosecutor the one who was the personal friend of sacramento or improperly participated in the proceedings by voicing his opinion that sacramento or could continue to represent cecil the court agreed with the state and denied both cecil's crinkle motion and nd miller's motion to withdraw without appointing new counsel for cecil sacramento went on to represent cecil at his nd sentencing hearing where she raised no objection to the introduction of the transcript of his st hearing as i have just discussed later she moves for reconsideration of his forty five year sentence but presented no argument or evidence to support the motion the trial court's conduct in permitting the state to participate in a criminal hearing without appointing counsel for cecil is reversible error this claim which is precisely articulated se petition has more than an arguable basis in law and merits a remand for nd stage post conviction proceedings in conclusion c so request that this court remand for a new sensing hearing or in the alternative remand for nd stage post conviction is not in deciding the two issues simultaneously i noted that it was an unusual circumstance because it does i think cast more light on cecil's crank a claim against his attorney that there was in fact irretrievable are your vocal breakdown in communication as attorney nd miller herself said the error was was not specifically a ruling on those two motions simultaneously it was an allowing the prosecutor to take part in the proceedings what when you get into the specifics of those ineffective assistance claims it seems that you become very deluded are we to consider just what he raises the the actual allegation well the whole thing of hodge's is that pro se claims that the st stage should be liberally construed and i think especially in light of cecil's diminished mental capacity his limited education and learning disability i think in this case his petition certainly deserves a liberal reading but his petition does numerate specific shortcomings to both trial and appellate counsel related to sentencing for example he felt his appellate counsel for focusing only on the issue of his excessive sentence and not on claims related to trial counsel's performance and among those claims he describes the failure to present mitigating evidence  sentencing and the failure to raise cecil's lack of fitness which according to cecil resulted in his self incrimination at sentencing so i think that you know the core of the issue is raised in his petition i think he was limited counsel at a nd stage in addition of the nd issue though is specifically raised in his petition and he does contend in a specific petition that the court erred and disregarding his critical motion against attorney nd miller and that this claim should are limited in their ability to articulate the precise legal argument or legal standard and i think you know in this case his mental capacity is simply further evidence of his limitations but you know again i do think that is any authority by which we consider can consider a lifelong history of mental illness and drug abuse as part of the liberal construction of his lead yes or no well  not aware of any authority at the top of my head but i i mean the issue he raises is not directly related to his capacity but i think you know it's it's all part of what happened at his sentencing just not fit and i have these issues but yet you are arguing that i guess what you're saying is because of that fitness issue you are now able to argue is the s how does that work well your honor i am not raising the claim because because he has it because he's contended that he has fitness issues i mean he has raised ineffective assistance of both trial and appellate counsel and of the impropriety of of trial counsel you know not not objecting to the introduction of this transcript and in addition the critical issue was was evident on the face of that of the transcript from the nd fencing or the i'm sorry the proceedings leading to the nd sensing hearing as well so those issues would have been you know should have been readily apparent to appellate counsel and could have been raised at that juncture on appeal from from the previous sentence but are you putting us in a position as a review in court to actually look at things that were not raised for the trial court with some specificity the trial court looked at a different i reading them i think the drug courts looking at a different argument and a different substance then you're asking us to look at how to how do we reconcile th well i mean you know certainly this court is in a position to engage and to know for review and you know i think i think the petition does articulate these claims regarding ineffective assistance of counsel you know whether or not the trial court fully considered all of the claims in the petition doesn't limit this counsel would be would be right in addition to that both of these claims are based on merit was legal theories therefore they don't rise to the level of an army bases were released in this course you criminal behavior politician or could have exercised his right to remain silent and could have refused to answer the state's questions and cross examine the record does not indicate that he did so in fact the record refutes petitioners claim that its constitutional rights violated when he chose to testify at the person seen here in the record as robust from the motion today kate is fisher testified that he was aware that he was required to testify but he chose to do so by his claim that he was unaware in that hearing that she discussed how occasionally defend it and that he wanted to both testify and offer out too soon but after his disastrous performance on cross examination after testifying she had by some not doubts you as a strategic has not overcome the record today and has not demonstrated that is testimony to for a sense of hearing was compelled by an infringement of his right against self incrimination or by an infringement of his right to counsel you further appeals to so the admission of the sensing transcript the fact correct is your business and that's ok but the front court really didn't find that she was effective at either it's simply looked to the fact that this same attorney may want to tell  if the state and the defendant are both in effect you have that doesn't negate the ineffectiveness doesn't it would not but my point is that there was no finding as his oppo often references in a report this counsel was was ineffective there's the reason the plea was withdrawn was not due to counsel's ineffectiveness or there was no discussion about what what the court believed  only sorry corrupt isn't bad ineffective assistance  what she can they do to defend it and he had agreed to it according to her to plead guilty to seventy five or eighty five percent at the very worst worst case scenario in exchange for that that any finding by the court and any of those other issues i'm sorry what other issues all the other issues that were raised at the time you know in but has no recollection is no it was only because there was a non adversarial inquiry made by the court that it occurred during in conjunction with another hearing didn't lessen the fact that the state was not participating after its initial state of the state i think speaks almost st and says it opposes the motion to withdraw after that the state doesn't speak again and the court goes on to conduct a properly critical inquiry and ask the comments about on what he knows of counsel's performance counsel had after all moved successfully to have the st lady take a did so it's the state's position claim that his defense attorney had betrayed his trust the state's attorney his trust in only in so far as he stated that he believed that  him and that because he had never spoken to him and had spoken to him in one day and that there is no specific allegations that he had betrayed his trust that would affect his he does make any allegations that anything you'd like to ask based on the questions that were just asked in the answers just given i do not have anything further at this time all right i'll i'll ask a question or two get on my minimal microphone i am looking at just as an actor for justice now she's a judge judge acard disposition of this and it is clearly much different than many of the post conviction petition  decisions that we receive and she but she what she does the top full to this court i believe is set out exactly what the defendant is concerned about and he's concerned about his fitness to do anything in his court it's secondly his continued requests to for new counsel isn't that what the issues are raised in the actual p c p before us th recollection without any specific facts to to support either of the claims of my opponent and the only time that i could find a mention the prior transcript which is really the only the foundation of this i believe appellate proceedings is when she says that she had access to she was aware of his fitness and she had access to three fitness valuations that transcript from the prior hearing scenting hearing the pre sentence investigation his own statements regarding his mental health and the l a department of corrections records subpoenaed by trial counsel and provided to the preparer of the crease sets a best a geisha she doesn't expand on the transcript she says that she was aware of it as it relates to his mental health why then are we talking about the issue that's within that the issues within that transcript when he did not raise them in his petition i don't have any additional questions do there my colleagues based upon those questions i asked i did that thank you thank you ms cook if you wish to reply you may do so at this time make a statement an allocution rather than being called to testify and subjected to the state's cross examination cecil explained at that hearing he knew that he had the option not to testify but that his attorney did not advise him that he could make a statement an allocution instead of testifying and being subject to cross examination an attorney for trent did not dispute that i believe her testimony was that after his cross examination had concluded she they discussed whether he could make a statement allocution at that time but she did not advise him prior to his testimony that he could simply forego cross examination by making a statement an allocution and in addition she did not advise him that he could answer cross examination questions and rather than hey you just as hudson do you know what standing that i have no further questions are right and i don't have any questions either that have not already been answered so thank you council very much for your arguments this morning w cook welcome to the nd district take the matter under advisement we will issue a decision in due course and at this time we will stand adjourned as our oral arguments for