we are now going to move to case number three of the morning gregory williams versus terry kennedy this is case number eighteen dash two thousand six hundred and thirty one will be hearing  attorney unreasonably advice him to reject the plea offer of twenty one years as quote too much time which the state now effectively concedes but better than anything he could have hoped for actual while there the state court  plea required mr williams to express please state that he would have accepted the offer even though the supreme court requires him to show only a reasonable probability french my st point by the time of the four  to conference it was the on question that attorneys rendered deficient performance when they failed to advise clients of their sentencing sentencing exposure including the possibility that mandatory consecutive sen been acquitted of kidnapping as the state itself once argued mr williams is opening brief before this court explain why that conclusion was wrong and the state offered no response in its opposition brief all the conceding that he could not have been acquitted  kidnapping the state instead argues the defense counsel recommended a trial largely to develop the argument that mr williams was guilty but mentally ill yes judge class told the public defender on at least two occasions before the off the record four o two conference that he gave e m i finding would have no effect on mr lamb the sentence in fact judge class said that he would make an offer or any for a q conference that mr williams was quote responsible for his actions but mentally ill the state seems to think that this was a sensible strategy even while describing it as one that could at best preserve the pretrial discount  minimum of stick years or more and there was no dispute to get committed three aggravated sexual assault and because the state no longer argued he could have been acquitted of kidnapping is necessarily making the public defender could not have reasonably about that nd case you've indicated by argument that you believe that acquittal was unlikely what do what does the record reveal ruth regard to that nd case that mr williams said well your honor as noted in in the summary of the evidence in both cases and even today recognizes the prosecutor would have supplied the evidence and an answer when during the off the record for the two conference and in addition mitchell  went on to plead guilty to two counts of aggravated criminal sexual assault and one count of aggravated kidnapping thank you to sentencing range of equal to ninety years and he was in fact been sentenced to thirty years for all those reasons the to judge granted and the reason i'm asking the question is because when i look at the illinois court of appeals opinion in particular pages thirty one and thirty two of that opinion or in the supplemental and it's fair and as logical as your points seem what i'm worried about is whether you can tie into any into any record evidence because i what i'm worried about is whether i can say with any confidence that the points you make the observations you make are any more fair than the ones the state makes even more importantly the ones that the illinois court of appeals made when it said it really didn't know  case you're right that we know the charges against mr williams in the case you're right that we know what the trial judge offered as part of the forty one year clear range mn but i don't know what the state's evidence was i don't know whether the victim was willing to testify i don't know whether the defendant had a prior relationship with the victim i don't know whether the defendant had a defense i don't know whether there was forensic evidence i have no idea what advice mr williams received regarding the twenty year plea does any of that trouble you will your honor the primary response t effect as your last point about the advice the mitchell plan did not receive is the point that mitchell clearly alleged that he did not receive any advice regarding his sentencing exposure regarding either case so never advised as the possible consequences of directing the project in the courts plea offer which of course extended to both cases and i don't see that there is any other reading of that other than that he did not receive advice with respect to either case it would have been case because of course the four to conference covered both cases and then his public defender indicated on the record that she would need it to continue and to speak to mr williams about the offer that occurred in the week  offer which extended to both cases and so we're again regardless of whether the record indicates one thing or another about the case involving s d it still is the case that having the illinois court in this case to a clear strong presumption that counsels challenge to action is could be considered sound strategy petitioners argument really turns that presumption on its head asking for silences in the record to be construed as proof not just the strength of the evidence but there's also of course the sense in exposure d and then there's also the counsel's particular experience with that particular prosecutor how skilled an advocate are they had marshall revenants experience with that particular  twice as complex as it was not a twenty one year offer in one case whether it was a forty one year sentence recommendation twenty one years in this case consecutive to twenty years in the other case and we don't know anything about the other  than that position are faced similar charges which means that we don't know fully half of the inputs that went into counsel's risk analysis and so there's no basis the state appellate court reasonably positioner did not put it into the state record record he did not allege in his post conviction petition any information about that nd case addition or argues that there are two ways that we can tell if the evidence must have been equally compelling in the in the other case st he argues well the evidence must have been equally strong because the sentence recommendation the forty one years was split pretty much equally between the two cases but of course the sentence that is seen as a purpose for a particular product depends on the particulars of the conduct and the defendant committed that conduct it doesn't turn on the strength of the evidence position would not have  been sentenced to a higher sentence if there were for example done shot residue than if there weren't so if there were five i look this is rather than three as long as the evidence is constitutionally sufficient to convict that's just the end of it and now we turn to sen factors commissioner also argues that the evidence was equally strong that it's been securely he talks about d n a evidence and he points to the docket committee the other case which showed the blood testing was ordered and he argues well if blood testing was for the other case and if you will go to page two hundred and ninety two you see that that blood testing was ordered after petitioner pleaded guilty and was sentenced in the other case and of course what testing ordered after someone has been pled guilty and been sentenced it's not blood testing for the purpose of gathering evidence of guilt it's blood testing because illinois like many other jurisdictions require is that defendants were convicted of particular offenses have their d n a taken by a sample and knitted into the state and federal testing was ordered post plea and post sentencing in the other case which is how it's a dedicated term in your brief does do we know therefore that there was no d n a evidence and no blood testing with regard to criminal liability in the other case or is that just an inference so we we don't know that although i will note that under illinois law if they already taken blood or not they don't  hearings and some on defense counsel and also the assistant state's attorney both indicated their belief that there was not d n a evidence and the other case defense counsel said there was no evidence in that or case and then i didn't construe his allegations liberally enough under the illinois post conviction hearing act whether they held him to too high a pleading standard under the illinois just to the claims standard of course that's a question of state law and at the state court the state court thirty seven counts but as everyone now agrees he could not receive multiple or consecutive sentences on thirty seven counts he could receive them at most four counts so had counsel given him the advice that he full of counsel for not giving him to have been given him incorrect advice this stage is what it was objective of being a reasonable for the state of public or to find that allegation insufficient to establish a reasonable probability that fish were actually what is expected to recommend it sentence and if it was not objectively unreasonable  the crimes from witness reports and police reports and someone that hears all the sentencing information relating to the defendant his criminal background and substance abuse trouble listen family background that sort of thing and then it makes  described as recommendation as to an appropriate sentence now it then is explicitly available to both the prosecution and defense to reject that recommendation the trial court has no authority under will for two to parties agree with the court then they can enter into a plea agreement for that sentence if that requires certain charges to be dismissed by the state the state can choose to do that or not here we have no basis to believe that the state would have agreed to do so  ignored the allegations regarding what mr williams lacks in terms of advice not if that is an exposure to all these questions about what the court might have done and what the gist of the confidence claim might have been our assumptions of what they might have been thinking and that you want to just will quickly judge gotter i recognize your concerns and i take them i would just if i may just redirect your attention to the top of page one hundred and seven of the supplemental spending if you read that paragraph and school particularly given the opening sentence in the last where and in fact his mandatory minimum with the sentences of conviction far exceeded the forty one year combined offer so even the case involving j h alone not have improved on the offer of florida one years at thank you thank you to both counsel the case will be taken under advisement