counsel mr blount based his decision to plead guilty on incompetent but advice from his attorney about sentencing consequences his plea was not knowing and permitting it to stand without an evidentiary hearing erodes the claim ineffective assistance of counsel claim must show that the attorneys for the attorneys performance was deficient under the prevailing standards and that the prejudice resulted from that traditionally presidents is shown by demonstrating a reasonable probability that but for counsel's errors the results of the proceedings would have been different and that the second stage the defendant must show the substantial showing of a violation of the constitutional absolutely risley hughes and hall occurred under different circumstances first of all under wesley the major difference between that and this case is that he received a third stage hearing and that's what mr brown is asking for in the situation additionally risley and haul them guilty pleas or their claims that in effect of assistance of counsel were based on trial strategy incorrect information about trial strategy whereas mr brown's was about sentencing consequences consequences so the innocent possible defense standard that applies in situations where there is incorrect advice about trial strategy does not apply to the situation because whether or not he was innocent or had a plausible defense does not relate to his knowing and voluntary guilty plea and you get in there because the united states versus lee yes  courts tonight his motion to vacate stating that in light of the overwhelming evidence of guilt and most you would have almost certainly gotten a longer sentence and been deported after trying to work after trial the supreme court however h first of all the focus of the encourage whether deficient performance leads to a guilty plea the question is not whether a different outcome that tree at trial would have occurred whether the plea bargain the question is whether the defendant was scenario like mr brown's to illustrate the point that even the smallest chance of success may be relevant to each and institution to plead guilty for example if it's stated a defendant with no realistic defense to a charge carrying a twenty year sentence may nevertheless choose a trial if the prosecution's offer is eighteen years in mr brown's case for example he his bargain was for eighteen years which he thought would be served at fifty percent for nine years had he been acquitted on the case that was dismissed so no prost he would have received twenty one years minimum eighteen year eighty five percent vs twenty one years at eighty five percent may not be incredibly unreasonable for him to consider going to trial additionally in there was the separation and the distinguishing between guilty pleas that were based on incorrect advice about trial strategy and guilty pleas based on and crafted by spot sentencing consequences his counsel's deficiencies but it states that judges must look to a contemporaneous evidence to substantiate a defendant's expressed preference says lee additionally warns against a port per se application proceed application which the state essentially advocates for in its brief eliminates the ability of my client to seek relief for an involuntary and unknowing guilty plea based on competent advice from his counsel about told and several times that his guilty plea would result in a sense of eighteen years served at fifty percent not eighty five percent that's objectively correct under the statute  the record indicates that mr brown relied on that error and his petition stated it several times he stated it in his motion to reduce sentencing which was dismissed it was consistent throughout the record that he had relied on that no prejudice is presumed well that is one way of looking at it i believe that air has to be shown and the reliance on that has to be shown in this situation where the guilty plea was reason for the plea is that you say that that requires an evidentiary hearing i do yes because we can't just look at the record here and say this defendant was charged with a series of serious crimes and two requirements show that there was an error and show that you had relied on that and the alliances are not there allegations but specific examples of bad advice that he was given by his attorney so what was the charges is really of no moment correct i'm saying that the at the second stage we're at the possibility has not yet been determined and it has not yet been proven because all allegations are affirmatively given bad advice about sentencing consequences if in if the defendant shows that reliance and that the air and that reliance with some information and evidence that actually occurred rather than a defendant saying my attorney gave me bad advice i want to urge state sharing whereas in my case the defendant said he told me several times i asked him specifically before we went to trial he showed me the paperwork saying look there's no eighty five percent here you're going to be fine those are enough to get him to that stage hearing he just needs an opportunity to prove those allegations and that's w explained that a burial edition of the defendant would have pleaded not guilty and insisted on a trial if counsel had not been deficient now i know you say that the hearing is going to include those deficiencies so it is not enough to establish  court case is that not directly contrary or we're not asking to overrule that because the innocence possible the fence is certainly a pick a ball and situations for example in people the hall where the defendant was not told about a kidnapping offense that he could have had absolutely that applies there but in the situation where the innocence possible defense does not have anything to do with his knowing and understanding involuntary entry of a guilty ple everything you're talking about goes to the deficiency of true kills the not know we the ramifications all that and the clients and the defendant's reliance on that very so and this is th shows that the amount of time that he was willing to accept was ninety or so eighteen percent served eighteen years served at fifty percent but being nine years he even stated i would have taken  police if it was at ninety nine years so that's clearly what he was basing his decision on the the reason that he should take this to the third stage evidence you're hearing and the reason why this doesn't open the floodgates is because it relates specifically to this type of situation guilty pleas must be knowing and voluntary and if they're not and if the allegations that he made of second stage are taken as true as they must be than for all intents and purposes he did not enter it knowing him guilty plea so a third stage evidentiary hearing is whether that determination can be made or that the credibility raid where the evidence can asking that it not be applied anywhere i'm just stating that at this particular stage in korea they said that the strict instructor and the defendant was dealing with an adversarial trial setting but in korea the he was dealing with advice given by counsel in a private office which undermined the defense the findings decision to plead guilty pleas made in reliance on advice of attorneys who have demonstrated competence it's prejudice should be shown at the third stage and this articular set of circumstances he was denied due process because he was the knight the entire judicial proceedings because he relied on bad advice and that can be shown at the third stage the allegations must be taken as true as i've noted there for without allowing him to show his evidence at the third stage that's permitting and voluntary the reliance on that evidence of the reliance on that bad advice is something that can be demonstrated that the second stage additionally and lee the the court noted that a client with out if possible the funds without a viable defense it may have been just as important to him to well the dice and try for a trial in my client's situation eighteen years so that eighty five percent having known that would be at most is eight twenty one years if he was convicted only on the dismiss charge that's not much of a difference for him but because he pled guilty based on his attorney's advice that it right i'm showing that and you see i'm asserting that at that stage that application can be shown when the evidence is available and when the allegations are way because they're tak may please the court counsel i'm assistant attorney general michael simple work on behalf of the people the state of illinois there are two straightforward ways to resolve this appeal first the record directly rebuts defendant's claim that he pled guilty based on  advised the defendant and the defendant expressly stated that he understood the charges against him the evidence against him the maximum a minimum sentence the he faced and by pleading guilty he was waiving all of his trial rights the trial court and the defendant the i'm only getting nine years into this deal he never did there was no discussion of good time credits or any other suggestion that he would serve anything less than eighteen years in prison and for that reason the record directly rebuts is claiming now defendant has argued in his reply brief that what that what his lawyer provided was legal advice and not a promise and so we should ignore the trial court's lengthy admonishments but there's absolutely no authority for that argument in this these kind of questions in admonished months are important to protect the finality of guilty pleas one last point is that on this issue is that defendant has argued in his reply brief that at some point during the negotiations his lawyer told him apparently don't play with these people that but for counsel's about advice a defendant would have rejected a plea deal and insisted on going to trial is not enough to show prejudice instead both this court and the united states supreme court have repeatedly held that a defendant must  allege enough facts to show that we're been rational to reject the plea bargain and go to trial this defendant has not come close to meeting that standard the only thing that this defendant has said is that if you're being properly informed about good time credits he would  now because the justice roberts talks with the government has asked in that case for per se rule the defendant with no viable defense cannot show prejudice from the denial of this not not having i mean clay and advice is the same i think counsel may try to make a distinction between advice that relates to legal strategy and advice that relates to the ramifications of pleading guilty in the first group bad legal advice about strategy or potential defenses the supreme court is very clearly said the u s supreme court and this court that you must allege you know that you were innocent or that you had a plausible defense you could have raised a trial so that group is very easy the second group instinct in the council is trying to raise is well what about cases where the bad advice relates to the ramifications we acknowledge that lead does hold that in certain to use leads language rare cases or unusual circumstances principally related to bad advice about deportation a defendant does not necessarily have to allege that they are innocent or that they had a plausible defense but i think what counsel is ignoring in her argument is that lee expressly upholds the bare allegation least still holds that in all cases relating to any kind of bad advice i defend it still must allege enough facts to show that we've been rational to reject the deal and that defendant has not met that burden in this case is easy to see when you compare the allegations of lee vs this case and the rationale of the united states supreme court in levy the defendant submitted an extremely long extremely detailed review petition in it he alleges that on numerous he alleged a number of specific facts in this petition showing why that was true for example he alleged that he had moved united states was a small child he had lived here continuously for the last thirty five years his mother and father were both  united states citizens they were elderly and had some medical issues he was the only person around that could take care of them he alleged that he owned and operated two very successful restaurants in memphis tennessee and so for all of these reasons he wanted to remain in the united states and he would take any deal as long as he was not be deported it was based on all of those specific allegations united states supreme court said that lee had met its burden to allege prejudice or to show precious you really think it's true by the deportation i'm sorry  you think it's really is driven by deportation and i mean this is big section where she just says roberts tries to balance well if he pleads guilty he's going to be deported going to trial well almost almost certainly he'll be for it and so balancing all of that we say not everyone at least position would make the choice to reject the plea but we cannot say it was irrational to do so and it is the way the languages in the court is not looking at the heavy burden of persuasion they're looking at trying met that burden he had alleged enough facts to show that that was such an important issue for him it would have been rational for him to simply take his chances at trial even if he didn't have really much of a chance to win the supreme court specifically said in those kind of unique circumstances where the only thing you care about is avoiding deportation it makes sense to reject a deal that will lead automatically to your deportation even if your only hope is you get lucky perhaps with jury nullification a trial now as compared to this case the defendant has not alleged any special facts or any special circumstances even his petition or certainly many of his briefs to suggest why it would be rational to reject this deal now is he not done that there's no reason to believe he could do that because this defendant had everything to lose by going to trial the evidence against him which consists of numerous eyewitnesses including several police officers can fairly be called overwhelming and we know that if you've rejected this deal we've gone to trial been convicted and as the truck court said he was one hundred percent guaranteed to get a much worse sentence and i said for a couple reasons first of all just on the home invasion charge alone he faced a mandatory minimum of twenty one  years given the terrible nature of this crime which involved the defendant breaking into a woman's house with a gun threatening to kill her children putting the gun against her daughter's head and trying to pull the trigger and then charging the police off police officers responding to the attack and trying to shoot them and given the fact this defendant has a very long violent criminal history we all reasonably know he would have received much more than the mandatory minimum of twenty one years so there would be no rational basis for him to have rejected this eighteen year deal he's never suggested any reason why it would have been rational for him to do so and so for that reason he is still to meet the burden set by both this court and the united states supreme court should have the opportunity to prove your allegations if you have ventured here in almost you know if you only have a bare bones allegation in your petition but that is certainly not the law and post conviction seedings it's settled law you must leave enough facts to make a substantial showing of judgment thank you thank you thank your honour's the biggest thing to remember between lead and this case is lee had evidence here hearing his attorney testify that he didn't believe his client had a good case my client stated at second stage that he did not his attorney was wrong that he relied on that advice that's the big difference between  supported by the evidence because of that additionally levy focuses on a client's decision making the defendant's decision making process which is what differentiates this from other cases and precedent lee whether or not there was an the fact that there was overwhelming evidence of guilt did not was not turned the case it's the fact that the defendant in his position it could have been rational for him the most important thing for most defendants is the amount of time they're going to serve in prison and the lead decision specifically focuses on the decision making process and here his decision making process but contaminated by this bad advice additionally whether mr lee would have won at trial is is not known sure likely he may have had a slim chance but that slim chance have been all that he needed there could have been any number of reasons why this could have turned out differently most importantly is that the state has to prove its burden allegations he made at the second stage which are to be liberally construed and taken as child were enough to get him to that sect so that the state with these decisions can be made and the proper facts are before the