is united states of america versus harshman good morning your honour's john dallas on behalf of floyd harshman i'm intending to reserve two minutes for a bubble mr play he did not realize that his attorney had given him bad advice until after the time he pled guilty and didn't realize he had an option we draw his guilty plea until the court actually kind mentioned later the claim be ineffective assistance of counsel in connection with the plea agreement simple be raised in a twenty to fifty five a straight ineffective assistance of coun claim is generally considered more appropriate to be raised in a twenty two fifty five action but this court has said several times that erroneous legal advice can be raised on direct appeal were restored under under state law not so clear to me looking at that state law that its rights would have been restored under we're asking us to find on appeal that he got iranis legal advice because he says he says the law is a certain way without any factual predicates rush finding whether it applies to him or cock yes and it is somewhat of a sparse record because the court never asked the t never have would have an answer earring but the other claim of why the legal advice was erroneous was that his prior convictions did not qualify as crimes of violence and then he raises a kind of an ex post facto court it found that the first degree burglary conviction or get involved in meier did count as a crime of violence but when i think that at this stage when the court is considering whether or not there is a fair and just reason to permit him to withdraw that guilty plea and he is claiming that he was told that he was subject to a fifteen year minimum on the found in possession plus a five year minimum on the night that he's content to nurse contention more nuanced pension is that he faced the possibility or the real jeopardy of those well i don't think he says i was told flat out i would get those if i was convicted but rather those were possibilities well i think the as a result he pled to a ten year sentence but right now it's clear that he would not have been subject to a twenty year sentence because the arm her a criminal act doesn't apply in my argument would be that the court to consider that the johnson case at this erroneous legal advice that the play was not knowing about it certainly entered and then also a third argument that the government violated the terms of play agreement because they have not advocated for the return of his sensitive performance i assume that if we don't quit you really fear and hold that the police remains the government will be obligated to perform at portion of the agreement but what was an obligation to perform it while you were still attacking the agreement our position is that the agreement went into effect at the time the court accepted the plea agreement and imposed a sentence in the playground that the government have a motion to dismiss which was denied without prejudice pr in their motion to dismiss they said that they would return the money after and you were going to say die for state to return the money but that it is the state to return the money they would have to stay to return the money not even after the appeal to smith's but after the twenty two fifty request to either hold a hearing or to request a responding affidavit from former attorney i don't think that changes anything but i apologize for that or i believe that this  case is really directly in the pattern of rahman and somewhat also trumbo and that is robin was a good example because it was a motion to a draw a plea how he was misled misguided or what erroneous advice he got and so they said well there's no evidence in the record sufficient for us to make a finding that the plea was invalidated by  all rodeos actually he had the best i was able to count it yet about seven different grounds of legal advice and these were spelled out in kentucky at two thirty four which the erroneous i think that on the face of it it's ruinous and it did take the core pointed out one example a minute ago of the erroneous claim that his civil rights have been restored under oregon law one would have to consult an oregon law to find that out but problem with this contentions are that that one and two others of them relate to a count that was not even pled to it was agreed to be dismissed it was dismissed well argument is some of the benefits of this agreement were eliminating things that just did a limited without me having to plead to making a deal so the fact that they were eliminated doesn't mean that they're not relevant but they would be kind anyway try to should have given up anything in return for us would he say but it's essential points and actually the first one of the first and primary points was what he called preponderance of the evidence rule relevant  conduct rule and the guidelines he was saying well look i didn't have anything to do with that outdoor grew up on the hill seventeen miles out of town which is where he was found the time to see the growth and when he said i had nothing to do with that i'd be willing to plead to the one in the house on central avenue downtown that also had over one hundred plants in it but i don't think i should plead the things i didn't do and so that was his principal point and his attorney s got into the advice he said he got well if you are guilty of the gro downtown two hundred planets and there's a probability that you're going to be found to be connected with the outdoor grow up on the hill it's going to be added as relevant conduct and they only have to establish that by a preponderance of evidence and he said i found out later that my attorney was lying to me when she told me that because i looked up the law and i find that that you have to there's  supreme court case it says that all these things have to pick percent of the jury proof beyond a reasonable doubt so there's no way i could be held responsible for any other grows if i plead to that one on a relevant conduct theory based on a preponderance of the evidence he said i found out that was wrong so my attorney lied to me anyone who is versed in criminal law would know that it's clearly a big mistake on his part rather that conduct provision of the guidelines is not involved in the principle that a jury must make findings beyond a reasonable doubt in order to up the maximum that's a whole different line of law but he put the two together and thought that he'd been lied to that's the primary example of where his or it falls down on his claim that he was given erroneous legal advice we can do that with every other one he said that i was i was told i was exposed to a possible the burden of proof that he would be a flight risk or danger to the community and my attorney says totally fell down on the job and told me that we couldn't do anything about this when he's overlooking the fact that under e thirty one forty two the burden is on the defendant when it's a case involving a drug a crime that carries a maximum that is greater than ten years so he's got his legal authorities all mixed up  throws he's out as attorney as proof that she has given him erroneous legal advice on the final lenny used was my attorney was an inherent conflict of interest because she's employed by the federal government well that would invalidate all convictions that are ever defended by the federal public defender and this plainly erroneous on its face so that's a quick character and quality of the objections to the legal advice that he got the role protection order after the fact they're made up on his theory of the law and they're just plain wrong and that district court was correct when it made the finding on that that all the advice that he was given was accurate in every material respect that has been pointed out any single defect in it the other prong that he had to his claim for grounds for withdrawal was that he was while he also leveled that accusation against the district judge he said the district judge quirk's me i considered veiled threats when the district judge told me the potential maximum that i c face and that's the same reasoning he used when he applied the term coercion to what his attorney had done he said and this is principally in his affidavit in support of the motion the formal motion to withdraw pleaded as counsel file after he wrote that long letter but in that affidavit he said my attorney told me these various things were erroneous and told me that if i didn't take the deal that the maximums would be considerably higher i found out she was wrong she was lying to me and the way she put that to me that's what i consider coercion i think that's the last line of his affidavit so he's defined what he thinks the question actually is and it was nothing more than telling him what his exposure was under the law whether that came from his attorney or from the court he called course and in both instances i believe that does place it squarely within robin case because the absence of any basis for the court finding support for the allegation of erroneous legal advice prevents the court from finding thereby that there was l thank you i just really want to raise one point but i think that this case is less like rahman where where the defendant had given no specifics of how the tourney gave bad advice or misinformation and where this case mr harshman gave a number of specific points a few of the major ones have raised in my brief and more like davis where the attorney was found to have grossly mis characterize punishment range as being from probation eight years and misleading this mr davis that he could have gotten probation when it was very very unlikely in that case the court grew verst that was it evidentiary hearing the