found out about this affidavit a time earlier and then the second step of this is material evidence it's not cumulative it sure is that this show didn't commit the crime to challenge the voluntariness on the plate that's the vehicle by which you have to attack in order to actually have a claim because when you plead guilty you actually like when you were going through the test and explaining how your evidence it satisfies the test we didn't quite get to the last problem which was that it would change the outcome of the trial right so there was no trial  there's another procedural question i have i don't really recall reading any case and you maybe can help me out where a person is actually moving so to speak  mechanism by which someone can move for a hearing on a post conviction read when they're challenging the plea and not the other half well discussed this what i would call morass that is being raised here that he's saying i'm actually innocent of this my point on the other hand again this case has continued and it comes up a week later and that the process stations are now present the judge accept the guilty plea and sentences him on these two  pled guilty to three different informations and they are not claiming that one of them is frail or in their finding this one over here isn't far i was now and it involves the the other issue at the guilty plea here is the you know the testimony then skip and and and and that's another issue is what do we do what do we compare because we don't have a trial right but here's the other other issue i want to ask you the claim of an actual innocence proceeding and we have the fourth calling that is so conclusive it's likely to change the outcome so if you have this hearsay and then you have this conclusive rule my question to you is there's seems to be a contradiction but are you aware of any exception to the hearsay rule where a deceased person to herself potentially to obstruction of justice charges because she is now leading the investigation in the wrong way then that might come in and again i think th evidence presented that there were two multiple offenses and one of them you could say might become evidence of other crimes it's if it was a second home invasion it involved a robbery  as the perpetrator you get the plea that's one of the pieces of evidence that he set out on the record and then he was arrested driving her car that that's right was taken in her home page and then the other evidence that was presented regarding this founds in which there is evidence presented of sexual assault and you come to the home twice again if i can along that there is the evidence o two statements that he made given to an assistant state's attorney involving the one home invasion and be home invasion sexual assault with that in mind not about allowing hearsay allowing this statement of impeachment recantation whatever you want to call their position is that you cannot meet the test that this is so  conclusive it is likely to change the outcome i retract now let's say for example that you have agreed that we would you wish for it if this court has to analyze it we don't compare it against evidence at a trial we would compar see evidence presented at the plea proceedings is it your position that this statement would be so conclusive likely to change the outcome if a fact finder heard what has just been presented so rights he wrote the opinion the appellate court opinion i concur it went up to the supreme court i think we're very familiar with the actual innocence test my question to you is this based upon this record there still is a requirement of that and that in an off the self this conclusive search at this stage taking these allegations as true that is at an evidentiary hearing but none of this is in the record right now do you think that the statement mr cole made could actually be used as substantive evidence of guilt is there any rule of evidence that you think would actually permit any finder of fact to allow a statement of impeachment or recantation as substantive evidence of guilt where there's been no opportunity to cross examine that person is deceased there's actually i mean there's no i'm not aware of any evidentiary rules that would actually allow a statement in pietschmann or recantation to be allowed a substantive evidence of guilt of another person let's say under any rule statutory or common law feet only rules we cannot get our substantive proof to be admitted in a court of law regarding a statement of another person is only when they were given a statement oath subject to process and when those requirements are a matter of fact and them and only then consider that as substantive proof there's no rule that would even permit analysis about the actual sense and why it fails under those standards let me first address what the court was playing as an issue which is the fact that this was not a plea just for this one case it was a plea to two other cases that were similar in many respects and again trying to separate the sad part is nearly impossible to do especially given this is nearly fifteen years later well it's really you know i mean the real important point here is  state according to point the finger at someone else yes that's what he says and assuming the bed is true that gets into the actual innocence analysis and the first that witness to hear what she has to say and you're assuming she would have told him the same way she told well we don't know because there is no allegation that no there's no argument that he made any the victim identifies him shortly thereafter and physical lineup and surely he gives a handwritten with both a confession to the police and prosecutor according to call it is the very next day after the physical wideout that she do we have anything that allows for the substantive admission of a statement of a person who is dead who didn't testify under oath who is never cross to claim that that actual damages under federal rules statement that another person says she is out for it saying that he didn't do it this other person there's no rule that covers that he says there is and maybe counsel has a valid point i want to ask you about the procedural justice make deep throat the decision and he said yeah post conviction petition could proceed on the basis of an involuntary guilty plea where the person said that i was forced to plead guilty because we have here when we look at this evidence world without women looking at this evidence of all we have is the guilty plea hearing that's that's the only evidence presented in this case because there was no trial but again this that's going too far afield from what happened in this particular case with this particular defendant here he pleaded guilty on appeal he is focus but ultimately they've got a document that if true as you agreed with me if true it's a big fire right but it's what we do in the second stage that he's innocent or at least he's got a pretty good claim t that you can put anything you want and then eventually hearing and conviction matters and then at the same time happen have a standard for a trial that would not permit this somebody understand something differently and i thought he's still not aware of any rule that would permit and the test is your fault and the last test is that the evidence must be so conclusive it's likely to change the outcome if we usually evidence given at this fleet perceiving i think you've argued in your brief that if you take everything at the pleiad proceeding including evidence about it crimes that is a home invasion that was committed i think it was subsequent to the offense here in which he was arrested in a vehicle and then gave two different written statements regarding offenses that there's an argument can certainly be made that that it would not be so conclusive as to change the outcome  don't know what the mechanics are because as i say this is a case involving a plea of guilty and there really hasn't seemed to be a discussion in any of the cases of what we look at what did the trial court look at she did look at whether her what he had done now wait before he said that he had he had a controlled substance problem that's what he was but he actually you know and you know what this one is for on the know i'm not pleading guilty to that and they beat me look terrible and i don't i didn't want to plead guilty then the next week he comes back and their cell phone blow proceeding and the judge you know middle and usually maybe down the road there will be a plea and in those cases the judge will be very particular about his or her when it actually takes place to make sure that it is it down terry so isn't that something that both sides should be looking into but particularly this state because raises concerns about the acceptance of the guilty plea of an individual who for whatever reason one week does a wild plea that next week they do a lot of plea the judge does everything in their power to try to ensure has a meaning in all the bells so this is also very difficult because i said we don't have to try so nonetheless i think that sanders does good sort of a obviously don't have that here we are supposed to proffer it at the time the guilty should be guys summary of what the evidence would have said but we don't have any credibility findings or anything so you have a nice shiny affidavit full of great stuff about how in can and if we say that we're going to compare this coil today to get space with nothing on the other side doesn't everybody who took a guilty plea in prison right now start difference for the state now than there would have been back then but i think and i'm not really responding to your question i mean something's been prison for seventeen years who pleaded guilty but now come in information that he didn't have previously and in fairness to him this is not sending him back for the trial all you're saying is let's look at the truthfulness of these claims it's not like you have  a vacuum here we're going to use the analysts it was presented at the blue proceedings to make a determination right and i mean isn't that fair way to do it that we would actually look at what the state presented at the fleet proceedings to determine whether or not you met the test under standards edwards washington the bay actually if we go along with you actual innocence claim that we actually have to compare it to something live it wouldn't be that the state has already presented any char separate evidence that has never been brought forth and that's not part of the of those amply proceedings that well we appreciate the if you don't take it further and we will i believe yes the attorneys