apology in this case sterling nichols then mr nicholson appeals the rd stage denial of his post conviction petition raising a claim pursuant to laugh libby cooper mr nicholson claims that he received ineffective assistance of counsel because his counsel failed to invite him during plea negotiations but the state's offer of six years for one count of aggravated domestic battery was the minimum sentence available for that charge and that a mandatory class thirty years and that's hard to apply constat counsel and by ten that he would be subject to a class to extended range of anywhere from probation to fourteen years and mr nicholson claimed that he would have accepted the six  offer for aggravated domestic battery had incorrectly advised instead he took a chance on going to trial thinking he might receive a sentence as low as probation and if convicted at trial and he has dogs the twenty five years for aggravated m bare assertion that he would have done so is not enough but we do have much more than that here our supreme court in any tail decision people the hail office and detail guy dance on the kinds of factors that provide proof that rejection of a plea offer was based on counsel's rania's and by these factors include the weakness of the defense case which we have here a disparity between the offer and the actual sentence which we have here the fact that it offers for the mandatory minimum which we have here graduating sitting by counsel and here also we have crowd rating statements by mr nicholson himself at the sentencing hearing so these factors are all present in this record and corroborate the assertion of a reasonable probability that mr nicholson would have accepted the six year offer had he been crackly is just as problematic  think well you know that it's sort of self serving i think that certainly it's not the most precise language it's the st d time that he is faced with this surprising information at sentencing he is a lay defendant i don't think we can expect that the language he uses to communicate himself is going to be as exact or pre that of a legal professional for example but i and i think it's possible he was using softer less direct language perhaps just more formal when he was addressing the court but i do think i doubted leave the main i the main idea that does corroborate his subsequent post conviction assertion that had he been had he been correctly advised there was a reasonable probability that he would have accepted the the original offer now on the hill co discuss the a fact of the mandatory minimum in a case such as this inhale the court noted that even though there was a disparity between the the fifteen year offer and the thirty year sentence that was actually i d the many try minimum in that case was twelve years and the hill court thought that they hailed it and it might have taken a chance on going to trial i thinking he could receive the twelve year minimum and the courts said you know how  the chance i'm going to trial that if convicted if aggravated domestic battery that he could get a sentence as low as probation or perhaps a prison sentence that was considerably less than six years he did not know that he was not going to be able to do any better than the six years that was offered if he was convicted at trial so i think he credibly claims that that fact would have changed his analysis so priscilla to hail the fact that six with a mandatory minimum is a fact in the record that corroborates his assertion that had he been advised of the correct sentence range he would there's a reasonable probability that he would have accepted the state's  likely prevail in the attempt murder charge and he had not expressed the same confidence about the charge of aggravated domestic battery so mr nicholson reasonably wasn't worried about the sentence range for a time murder murder murder and analyzing offer and i think the more important point is that the advice about the class x attempt murder would not have left neutralized the misinformation that mr nicholson received about the possibility of getting probation or a sentence of fewer than six years if convicted of aggravated domestic battery at trial so the circuit court you know the circuit courts reliance on that understand what is the minimum sentence in relation to the plea offer that can be a critical fact in a sassing whether the record supports that there's a reasonable probability that defendant would have accepted the will corroborate that assertion the weakness of the defense case which we have the disparity between the offer and the sentence the fact that the office for the mandatory minimum corroborating statements by counsel and of course here we have corroborating statements by mr nichols and so in light of the ample corroborating factors in this record the circuit court's refusal to credit mr nichols in the search and that there was a reasonable probability he would  sentencing is the appropriate remedy now lefler explains that there are other situations where a different remedy is appropriate if for example a defendant rejects a plea on one offense and then is convicted at trial on a different or greater offense that triggers very little about the facts of this case and during the trial many facts about the severity of the victim's injuries and other such things came out which i mean and will will be very difficult and the judge to i'm here  but more than fourteen years does this court have the authority to sort of manipulate or decide what is areas because defendant knew and he states in his post conviction titian neutralizing the taint of the constitution by lation a constitutional violation here would necessitate placing him back to where he was before he rejected the plea offer and six a six year offer being on the table what would do that a six year sentence would best do that certainly though anything above fourteen years i think cannot be such a huge life change and i think you know again i think the court's instruction to t the that the circuit court issue a sentence of between you know three in fourteen years i think this court can do that and then leave that discretion to the trial court but but i think that the important answer for this court i don't have anything else ok well so then for the reasons argued here and in the written brief appellate respectfully request that this court reversed the giant denial of  to focus on i think it's a practical application of what song was thinking at the time but in addition to that if you take a look at counsel's testimony as well as the fact  assessing whether or not he would or would have accepted is the fact that at that moment he was facing that yet he had an offer of the minimum term for that mandatory class that's on the attempt fact that we now know that he was acquitted of course the very contained say holy i would have taken it i would have taken it because it was it's military sense as opposed to probation fourteen but nonetheless that aspect can be looked at now can't look at what has happened afterwards to judge what he peered did or would or would have done before and i think that is the primary could fall of the defendant's argument because a lot of what they rely upon i think what happened afterwards and again there is no question that the offer of six as opposed to twenty five is a great disparity and there's there's no argument there can hear about that but as hale points out you can't exclude from consideration the fact that at the time  had other charges they had he had done a call sentencing range you cannot divorce that from the cat foam from this calculation so that i guess in my way of thinking that so twenty five i don't think me peter simply because the fact that great disparity alone would be sufficient enough to take a step is that there was prejudice here but consider that to tell you the facts present at the time and considering  argument depends on our believing the attorney as opposed to believing mr nicholson's testimony with regard to what he was told about whether or not he that it was the intent element where the state's case was weak and that the state would likely not be able to prevail on intent correct that's correct is this case and i think when the people disagree with the defendant to simply with the fact that you know this core or there should be an order w see or something in between and so i think that the men in this case under these guidelines would be sufficient to take in the  of fourteen years or a recommendation recommendation i think i think would be more of something that you know in this in this particular in this particular case in this particular situation simply because of the fact that  kid because this is this case kind of fall somewhere between the two types of prejudice that were talked about in the cases because in his case he rejected that offer but he wasn't convicted of the same  charge in the way he was because he often was may and he be tentative but i think that in this particular case because of the misinformation i think that a lot of the trial just to reimpose the twenty five year term i don't like your not conceding no the st you have the equation whether there was or was not because i'm wondering if could means will be acquitted and thinking about judge manti aires statement that well he he rejected the plea knowing there was a could be up to thirty years or are you backing away from that position not sure indicated that this was this was a client who wanted to go to trial and i don't think that's what he stated he stated that he would not have invited or he would not have told mr nicholson what to do one way or the other on the police offer but in fact there is he never did not read mr nicholson's claims that in fact there wasn't a kind of testimony that you saw in the hale decision i believe there at the evidence your hearing that there was they corroborated many of mr many aspects of mr nichols and claimed you know he testified that while he didn't advise on the class act and hanson and he advised mr nichols then that class to extended range appl while he couldn't recall if he had specifically told mr nicholson he would likely prevail an attempt murder at this point as his court point sell it would be unusual for a late offender to know that  intent elemental would be the weak point of the attack murder case and and counsel did it corroborate this portion of mr nicholson's testimony where he said i can't remind remember specifically what i said about the charge but it is my practice to advise on the differing strengths and weaknesses of the different charges that to suddenly that does corroborate mr nicholson's testimony has different attorney told him he'd be likely to prevail on the attempt murder charge but not the aggravated domestic battery charged counsel also his statements at sentencing and the motion to reconsider corroborating mr nicholson's claim of prejudice where he took the unusual step in his motion to reconsider to ask the court to  catastrophic his error had been perhaps clients and i think that counsel requested the motion to reconsider you know so that that corroborate that claim that counsel would take this unusual step in a motion to reconsider shows that he knew he had really prejudiced his client's let's let me ask you in looking at the record i think the offer was a little bit informal and i'm wondering i didn't see in the record where your client was given a not for a group domestic battery that the state said if you plead guilty you know we're recommending six on the attempted murder but they did not say what the other recommendations would be it's only it's in the latter two so mr nicholson attached to his post conviction petition and his own affidavit and also a ladder from his counsel outlining what the offer was in the state and there it says you know at st they state had offered attempt murder on twelve years and then the state dropped off or two is dropped to twelve years and then was going to offer ten knowledge of the record yes credit had a fairly extensive criminal history and a minimum six would have been the minimum extended term as well on the aggravated domestic battery so knowing that the offer was the minimum prison extended term prison sentence why doesn't the trial judge its logic prevail here you knew what you were risking you knew this was a good deal and you didn't take well to give again you know from mr nicholson's perspective if he thought there was a good chance that he was going to prevail on attempt murder  going to trial and he said to him if i did six i was never going to do any better than six years if convicted at trial that that would have changed my analysis i think the trial in light of all the ample corroborating factors here it's the exact factors hail points to will correct that will corroborate such an assertion and in light of all these factors that we have here you've got a question i really appreciate your input ok thank you were there any other questions in this case thank you we thank both of you for your arguments this afternoon and will take the matter under advisement and will issue a written decision as quickly as possible the court will now stand in recess for a yaml change