our fourth case this morning is crutchfield versus denison case number sixteen fourteen seventy six plea offer now the bottom line here is that the supreme court's tribunal decision and this court's precedents interpreted that decision clearly excused a procedural the fault of the ineffective assistance claim here you're claiming you double  think so your honor i mean so dobby like thing is sort of apples and oranges to this case because that case the first line error was at the appellate stage and so it actually did not involve an error in the trial court and so that's different from this case where you have the first line error occurring in the state trial court and i think that's what martinez and trevino speak to and i think that's what all the whole line of cases speak to is that there has to be some meaningful opportunity to raise an ineffective assistance of trial coun law there is an ineffective assistance of pellet counseling so in other words you're ineffective assistance of appellate counsel or post conviction counsel claim is just a vehicle to get a trial counsel and effectiveness and that's exactly right it's not a free standing claim claim that occurred in the state court that's what martinez intravenous speak to and that's exactly what we have in this case so we really just have to decide whether illinois insufficiently and now guests to indiana bring this case within the bro versus brown holding yes but i mean not only in the end i mean do not guilty my touchstone here is whether there is a meaningful opportunity for criminal defendants to bring our president is probably not that's exactly right but i think you know to use the supreme court's language  has to be some you know meaningful opportunity to bring these claims so i don't think indiana is you know the only model that we can look to you know there are multiple states around the country that would also fall under the trevino exception and i wouldn't look at you know identical to what indiana provides but in all events i think illinois system falls comfortably with interview no because there is no meaningful opportunity for criminal defendants to present ineffective assistance of trial coun plans on direct appeal and illinois own courts have spoken to this issue for decades and they have effectively channeled ineffective assistance of trial counsel claims that are extraneous to the record to post conviction review and so that's exactly why i think this falls under the the tribunal exception and the only reason that the state thinks otherwise is because of this crank will procedure that they mention but i don't think there can be any real dispute that the crinkle procedure is provides a meaningful opportunity because that is premised on a criminal defendant acting pro se and raising the ineffective assistance of trial counsel claimed himself and so in other words the state is saying that you know a criminal defend effectively has to be a constitutional law scholar and raise these claims themselves and i don't think you can fairly read martinez interview no one to reach that conclusion because the supreme court there you know makes multiple arguments saying that criminal defendants often do not have you know the education to bring these claims themselves they don't understand the law and that's exactly why they need effective assistance of counsel to help them bring these claims not sure i understand this crinkle procedure it appears to be review right i mean in the case of speak to it when you're in the first line trial court and so the allegation it would be that your trial court lawyer performed in effectively and then the criminal defendant himself says you know what there's but it could be a written motion it could be voicing this to the to the lawyer i mean to the to the trial judge doesn't have to be a written motion but in all of unstated places the onus on the criminal defendant himself to know why exactly his trial counsel was performing in effect a plea granted they can get away with the bare allegation of saying my trial lawyer was ineffective and that can trigger the crinkle hearing but at that hearing and that criminal defendant himself will ultimately have to specify i think it did i mean there are apples and oranges so as i understand indiana law the devas time procedure is effectively you know post conviction review that happens to take place before the direct appeal in tandem with director of the right but i mean the critical difference there is that lawyers themselves actually bring those davis hatten motions and here you actually don't even get a lawyer to provide your ankle motion that places the onus on the criminal defendant himself to know why exactly his trial counsel was not operating within the boundaries of the constitution i just don't think that provides a meaningful opportunity under trevino to say that he gets the that's and you know that he can then raise those claims on direct appeal and expand the record in the trial barely read martino's interview no i reached that conclusion and presumably at the direct appeal states the prisoner has counsel that's right but at the direct appeal stage the court is of course only looking to the cold trial record and so if the here on direct appeal there is no evidence in the record one way or the other about what mr crutchfield trial counsel did during the plea bargains plea bargaining stage and so there is no meaningful opportunity for him to raise that claim on direct appeal because illinois courts have said that unless it's in the record we're not going to look at it under appeal and should go to the post conviction stage to bring your claim and here you know i don't mean to drop people as i understand it the  offer was twenty five years that's right and then the council said something about twenty five years maybe  that's what they do and said he was up for twenty five years and then half of that is twelve and a half and so there's a seven and a half year stretch here that we're speculating about well i so i want to be clear that what the prosecutor offered before trial was twenty five years pursuant to statute right which would've been twelve and a half but what the problem here was is that his truck mr pratt fields trial comes a lawyer said that it has to be served at eighty five percent which is you said what do you serve at eighty five percent which is twenty a please the court and it's a fine attorney general aaron o'connell on behalf of the respondent i think i have to make two key points with respect to crinkle first we are not saying that crinkle itself provides meaningful opportunity for every defendant in the state of illinois the argument is that illinois expansive post trial procedures in general for expansion of the record to raise extra record claims of ineffective assistance provide the average defendant with a meaningful opportunity to raise that claim cri significant in so far as it extends its opportunity to a defendant who is a player who has appointed counsel and is claiming that his current counsel is in effect it essentially crinkle as a means of determining whether new counsel needs to be appointed to preliminary step so for example in this case so it's not davis had it's less than davis had i think that there are a lot of distinctions between this and davis had and i think david caton itself was a p c and in illinois we have actually two simultaneous options ok defendant can rely on the post traumatic and ism or the p c so there's two separate opportunities the way i read the davis patent procedure is this is your one opportunity as prisoner right because indiana requires you know it's a no claim splitting state here in illinois i guess the state supreme court allows claims splitting if you've got a strictly a claim that can be decided on the record you're supposed to bring it in effect you must bring it on director of you otherwise it's gone but that does not foreclose a post conviction claim based on a different ineffectiveness claim claims that can be litigated on the record well i think each case didn't eliminate the distinction that the appellate courts were trying between a record claim and claim that needs new no i think you're right but we have brown right which we have to contend with and i'm trying to determine whether what illinois offers to defendants  is more meaningful and that which was declared not meaningful in brown was clear about indiana is that there's a stated preference among their courts to wait until p c a brazen ineffective assistance claim because of these incentives where if you raise it now you can't raise it later they have said that it generally as a matter of practice better just to wait for all of it until you get to p c don't know why courts have be exact opposite general rule of saying we would like you to raise your claim on direct appeal and resolve as quickly as possible and the mechanism that they provide allows these prisoners not only to raise the record based cla they have the opportunity to at a hearing present evidence on that claim so a defendant can come in at that hearing and testify about the representations that well this presumably must be done pro se because the defendant is still represented by counsel will not in this case this case show i'm talking about generally right so generally if a motion for a new trial will be filed by trial counsel exactly trial counsel is not going to say i was an effective that's true so this is not a meaningful opportunity to develop a record so the person that the burden on the pro se defendant is to say i had ineffective assistance of counsel he can see he can file a written document while he's represented by counsel yes but he doesn't need and awaiting sentencing he can do it after sentencing which is actually what happened here and what the court and people versus patrick said was as long as  counsel to come in because obviously we can't expect counsel to argue his own ineffectiveness but doesn't doesn't permit the development of an evidentiary record before the direct appeal is present so i just want to use this case as an illustration i primary claim that was pursued by defendant was i received ineffective assistance of counsel based on this erroneous advice about the conflict now we're arguing get the same evidence you're hearing that he had at which he testified about that aspect of counsel performance also enabled him to raise this allegation about the plea negotiations however at that time petitioner chose not to avail himself of that opportunity and he instead just proceeded on one allegation that he had substantiated at the evidence you're hearing what are the time constraints on that procedure that motion for and it's a motion for a new trial is that the formal vehicle right so a motion for a new trial is that their preference is if there's a timely allegation of ineffective assistance at some point before than those of appeal we prefer you to investigate that as much as possible before the direct appeal and if you don't then the remedy for further post trial proceedings so i think the courts have said it airs is another example where the court has said we we really want you to have a full opportunity at the post trial stage because that's when everyone's memory is fresh and events have just occurred so courts have taken very seriously this need for even indigent defendants under prank call but through a procedure that is generally available to any defendant and as i say still a straight and has said this instead of saying those appeals you you raised it here you don't have a record go back to p c that's where you should pursue it my heart said instead said you raised it we like it that when you do this house trials we're going to send it back into further development of that record in the post trial proceedings just to make clear illinois does not require this they also allow defendants to raise its own p c but what that means is that defendants are getting two opportunities two bites at the apple as at work to raise extra want to begin by dispelling any notion that there were two bites at the apple in this case and i want to direct the court's attention to page forty seven of the appendix that spells out the chronology of events here and this is going back to two thousand and six so in two thousand and six june twentieth mr  nothing happens with it july tenth two thousand and six he files a motion to reduce his sentence nothing happens with it is direct appeal lawyers hired by his family without his knowledge and then he files a notice of appeal to the appellate court which strips the district court the trial court rather of jurisdiction and then several months later it says october eighteenth two thousand and six the courts realized that there were these pending motions that were never resolved and so they were send the notice of appeal and send it back down to the trial court to resolve the unfinished business in the trial court so that happened on october eighteenth two thousand and six by november fifteenth two thousand and six those motions were completely resolved all of that occurred within twenty eight days and so the notion that mr crutchfield appellate counsel would have had sufficient time to look at not only the record evidence but extraneous record evidence that the president's outside the record during that twenty eight time twenty eight day period to determine whether mr craig feels trial counsel record was ineffective i think is completely missing the mark here when our transcripts notice of appeal but for i mean for trial transcripts i just wanna be clear that it doesn't even matter when those are available because that what the issue in this place would have been during plea bargaining would never have been on trial transcript right and i see that amount of time so we asked