potentially act was an error here heard in a ruling that there was no reasonable probability that the outcome of this case would have been different stick than to find a reasonable probability is a sufficient to undermine confidence in the outcome here or gina johnson's testimony that therapist's testimony clearly undermined confidence in the outcome of this case your magnified other evidence that was presented by way of aggravation this is johnson was the longest with this and again remarkably changed the finest did absolutely nothing that you know you read it i think twice in the statement facts and then in the early part of the argument i listed some of the things that the terrorists testified to and it just turns this sentencing hearing on help wanted to get help the judge is just wrong the judge is blinded by this this this this than them that is being spewed in the court room that shouldn't be in this courtroom downfall the prosecutor try to steer him in that direction but all he would say is she needed help and it was it was it was sad to see such a fine person slipping so he got there and that's the second part of the argument the way he got there was to tell her that a lot you could have been sentenced you could have been charged with first degree murder that they're  finding first degree murder and said it's in the hope of knowledge that your acts can cause great bodily harm you were probably charged but you could have been charged with first degree murder the hill case that i cit with a felony and that's just wrong you can't do that you can't you can't says since based on your belief and in this case pretty clear that given the judge's comments at the motion to reconsider the just get a chance to read to do to correct their errors at those hearings and this judge plowed right ahead and said no you you may think i'm wrong but she could have been charged with first degree murder in this case that's where the sentence came from his belief that she should have been sentenced to a minimum of twenty years up to sixty that's where the sentence came from and that's just wrong but  didn't the court actually fail to consider all the statutory factors also interpreted that one way but it says what it says and this and if you want to use the glass for this is an improper aggravating improper factor the fact that the that that elizabeth threw us in judge the finest is min could have been charged with first degree murder is using the quote from glass and improper factor for the judge to consider that mr wise when i read that those comments of the judge taken as a whole it seems to me that the court that's fine but it's it isn't it you know it that the conduct is of a person who is under the influence of alcohol she's charged with a strict liability offense driving under the influence indicative of a person who is driving under the influence of alcohol not necessarily intentionally or knowingly of the judge and i don't know i don't think but certainly i think that the trial counsel to argue hey this is not intentional conduct as a as a mitigating factor and the judge can certainly respond by saying it if you know that  you know he he pointed out the judge pointed out that when she drove around town for a day that's indicative of nothing more than a potentially some some tolerance to alcohol but if you go one step further and say you can be charged with first degree murder and the judge courts judge the finest new all of those with the sensing scheme is it goes beyond simply responding to the argument that this is this is this is  has no there's nothing in the record but even if you know even for the sake of argument if there wasn't the beginning once you start to hear what this person is saying you have to abandon that strategy because this was in a word devastating absolutely devastating evidence that created a mob mentality the record clearly shows that in this courtroom where you have you know you have this evidence and then you have victim impact with this is getting up and going far beyond what's around victim impact statements usually heard from her previous to you why she should be sent to the maximum that there was allowed by a victim impact time and knew or should have known that this evidence was wrong and you know by the judge as i said before is that merely a referee for some reason he sat and all of it sat there and allowed this evidence to be presented knowing that violated the mental health confidentiality act and allowed this group of just this stunningly harmful testimony to be presented and not only that he commented on it in his eyes and th sentenced so he clearly listened to it and it truly affected the outcome of this case this is not a case where the maximum sentence was appropriate this is a woman who had who has looked at her life history and but for the last fifteen months of her life was a remarkable person who took care of the sable that becomes too much it becomes to get depressed she understands she needs counseling starts counseling those then the last fifteen months before this event happens to help the relationship problems takes  johnson has to say you have mark who has testified that he was there in june of two thousand and eight talked to a sister about her our use and took her to a doctor's appointment encourage her to get help she was receptive to that idea counseling at the carl clinic and that's when you know that's in the print the probation officer put that in her report confirm that and then after this this event she while she's in jail or bonds that you know five million dollars or whatever it is she's not posting mine all you have the witness who testified on the jail she's attending and a and a meetings she's counseling younger people in the jail she's made peace the bit i don't know if the judge or i think is the judge said hey that's too little too late he just says that has no conception or is blinded by what has happened this court room there is no effort at rehabilitation that is too little there is no effort  rehabilitation that it's too late none and for this judge to have said that it just shows how he was affected by this completely dismiss him nor would she a sentencing range in this in this case of three to fourteen years and you certainly consider what she did and what she did unintentionally under the influence of alcohol she purposely went the wrong way and i we have thought there was a witness who testified who was on the highway saw her coming at him kind of a way indicated that she would have seen these other cars and it relatively brief period of time probably you know from where the where the ramp comes we should come up that is it's half mile or less so twenty thirty twenty seconds i don't know how fast she was going he was drastically in effect an implicit waiver you can't wait then there's nothing in the act that says if an attorney falls asleep at the switch that that works as a waiver what that's why we have and that's why the court ruled and that's why the state has conceded the that there is ineffective assistance here you know i  sorry judge i strongly disagree that there's any concept of implicit waiver here when the statute is so clear or that but the purpose of the statute is to make sure that a person with mental health issues ten going to treatment and say everything they need to say with the confidence that this is not going to be used against them at some point in time just consider whether the council's conduct was incompetent or a check looking reasonable you going to have to get there if you say that there was insufficient prejudice this is pretty prejudicial testimony most of which prejudice has to be considered in the context sense because although this came in there was still enough evidence overwhelming evidence to show that she had all these extremely poor attitudes towards your heavy drinking which was excessively heavy drinking and frequent because she's back out drinking again and it's broken up with her partner and then goes out on this this track here on the interstate the wrong way and that killing somebody injuring seriously three other people there's this extra this information about what was said during counseling that sort of makes that just a little more apparent now the defendant's mean if argument here is well infected the entire proceedings down the judges and there's the later case is the point and not so there's contrary forty effectively and went over to say cited and where the the defendant was charged with a lesser range of of a controlled substance but had a lot more to session and was willing to do you a lot more so therefore the judge considered that aggravation what the defendant could have been charged with rather than what he actually was convicted of and so it's sort of like the point in the sense that the point allows education your prior employment that they're serving two major sides to her in the sense that the caring family member a diligent worker and a person has contributed value to society but this is the person who sure your honor well it stirs how when the defense sites are brothers testimony and she's receptive and thinking about this notion that she's got to get some form of treatment but she's not really doing anything about it so she continues to dream that was back in june two she gets the purse do you buy it she she goes through this this this therapy which is not doing her any good because she's still drinking have leave she still picks up that the second dui which she's charged with now and so for those reasons fire and show up at her house and they're trying to save her the hospital they're trying to take her for treatment she had agreed with her partner she was going to go and get treatment the next morning she's drinking she not wanting to go this or that or that or ambulance is called are counselor about duis are no big deal and she doesn't really care about treatment she thinks she should be in charge of the twelve step groups and stuff like that that's just kind of extra stuff that was on top of all of the evidence to back her resistance towards getting her treatment not just for her family and her partner and the police in the end linson the firemen everybody that come into her life as the chocolate city she turned her back well sort of blowing idea the notion that well yeah i'll do it maybe i'll think about it but she doesn't really follow up on it that's not really an act of defiance like she's telling off her brother but it's more subtly it's just like well she doesn't really care what her brother had to stay she just kind of took it in t way the interference with her drinking and the fact that when she told her there are not prepared because the financial advisor her name was more of me and she was talking about killing herself that morning and she was then she court didn't totally discount the fact that her her expression recourse and her real full time efforts are coming so late in the game but the child should credit that but the chopper doesn't have to e and just that the the fact that this is such a heinous crime that it's so overwhelmingly supported by the records maximum sentence and probably minute evidence and aggravation pedal sensing guidelines in our state system that evidence has to be relevant and come from a reliable source that is completely considering that evidence which is approved by the point is second that the therapist's evidence isn't merely human if you said it best when when the step is testimony was riveting her her testimony painted partner the police officer testified what happened was no different than many other encounters i have put with an intoxicated person as we testified to it one of the bizarre things that this is this is what we this is what we  see plus she would seek counseling during that time frame of the car clinic and and imagine that an alcoholic a person without a problem who is counseling who who has who doesn't take but that there's just simply no evidence of that the you know the i think the when the prosecutor says it best