recently addressed in the case of mark v beard namely that her attorney rendered ineffective assistance when he failed to make a meritorious suppression motion and thereby prevented her from making an informed decision whether to plead no contest to second  the the best evidence i have is blackledge self which says statements made in the context of a plea record provide a strong presumption of truthfulness  present a considerable barrier but it is not on rebuttable because no court can create a presumption that precludes the possibility that statements made during the plea record are the subject of coercion duress or misrepresentation by others and  this is where it's very important to recognize that we are in the pleading stage of this case ms lo does face a significant hurdle to prove and to prove facts to rebut this presumption in the district court after full of an entry development what i think is improper for the superior court and the district court to have done is to shut it down at the pleading stage to never give her that chance there is clearly a conflict between the plea record and what she said an alleged in her heaviest petition which is my attorney never explained any part of the pleading to me that allegation if proved will rebut the presumption so at this stage the pleading stage i think it is sufficient to overcome the presumption leaving for another day whether the presumption will ultimately be present overcome after the facts are fully developed and the court makes requisite credibility fin is whether or not i think you're arguing that there might be a man claim that was made here is that right yes and i'm trying to figure out where that would be even if we read this liberal doubt the reference to the sixth amendment which has no place in miranda or or general police interrogations i think can and should be construed as a reference to her miranda ri her attorney did not adequately discuss and explain aspects of the players a different sort of nuance to it though because the lawyer had made a suppression motion earlier and it was successful if i cannot come out why why would it be ineffective to not do the exact same thing yeah another words an argument well i think there's a couple responses that one there's no dispute that the adult court wasn't bound by what happened in the lower courts or could be renewed the second putting aside whether her initial statement should have been suppressed what competent lawyer knowing that this motion had been partially successful wouldn't of at least redo the part that he that was one below to at least preclude the statements she made after the miranda violations from coming in there's been there been no reason not to do that but most importantly the problem is that even as argued in the in the juvenile court this plane was never adequately adequately presented in argued in a way that that that that that it should have been by video or the detective gets very angry and accuses her of lying in pressures or into you know making same saying i know what you did you got to tell the truth the juvenile court judge said you know there's that change in tone i think that's when it starts to get a little custodial but then you get a miranda violation but the problem is the miranda violation was tainted so i'm going to suppress everything after the miranda violation what no what was the nobody pointed out either then or what a competent lawyer should have brought up in the adult court was that's when all the bad stuff happened the there was no confession until there was this change in tone where the the detective became very aggressive in the back when i think there is no doubt that given the factors relevant to the us not only the stuff that happened after the miranda claim ten minutes later but the she stuff she said in what ten minutes in the process of undergoing that aggressive kind of interrogation so i think that the issue is that it's this issue was never it was touched upon at best by the juvenile court lawyer but it was never argued in a way that it should have been and i think the court has the evidence in front of it now and if the court looks at the relevant factors which we've discussed  i think that this is a very strong motion and i think what the court recognized in mark vi beard is that with this kind of tallent mccann let's call it a mark claim now that if if it an attorney fails to bring a motion to suppression motion on key evidence that has a fair chance of a possible chance of winning that's deficient performance if the motion is so strong that it probably would have been granted and the defendant wouldn't have pleaded guilty had the evidence been suppressed and the second prong of the claim is proved as well and i think here we have established that the the working backwards the other way if lawyers going over it with her and her grandmother how would this claim pass out of the case as a procedural no i don't think so because because one i think that they they are standalone claims and i think and i think that with a liberal construction you can consider the claim to in liberally construed thing one but ok well but i'm not talking about whether it's adequately pleaded i'm talking about whether if if if once somebody voluntarily and knowingly and intelligently enters into a plea agreement some of the ancillary predecessor claims go away just that that could have been brought about whether or not for one reason or another is this one of those you know because and maybe i misunderstand the question but if i if i understand the question questions being let's assume that the lawyer did sit down with her explain every aspect of the plea agreement to or here's what your sentence is going to be you know i don't think you're going to do well a trial blah blah blah you should really plead guilty and she says right if he did have that conversation without ever bring a meritorious motion that should have one that's still a viable claim under tallent mccann mark so that counsel advised her before her plea she said he did she said it both in writing and orally in court he said that he did even ex describing his conversation with her on the record this day for therefore could not have been unreasonable in rejecting this claim additionally petitioners never allege that she would have rejected the plea and insist on going to trial under any circumstances and she needed to show him to get a hearing  did not see others on her outward like what for example for example she could have provided a declaration from her grandmother who was purportedly part of this conversation or at least an explanation as to why she didn't she could have provided a declaration from  attorney or an explanation as to why she didn't sing didn't provide the counsel to her are you talking about that attorney which right the attorney that was present and part of the conversation or whatever whatever conversation there she she didn't she didn't say she didn't explain anything in her allegations other than her petition other then stating my attorney didn't talk to me and he had my grandmother explain it to me did also doesn't describe why anything that her attorney would have made a difference to her in pleading guilty or going to trial just but looking at the transcripts allor answers are either yes yes no no no yes yes no no and she's saying hey i did that because my lawyer told me to you know i don't know just i know there's a black legend we give  presumption for what's in open court but in this circumstance it's hard to ignore that this is a fifteen year old at the time that she was arrested i don't know how old she was exactly when she had the colloquy she's being charged with murder she has an think it's important to know i think i believe she was about eighteen when she actually played guilty but nevertheless she did answer yes or no to most of the questions until you get to the end which she  that with what she said well but it's indicative of two things one that she wasn't just saying yes or no wrote lee and she wasn't just standing up and and not paying attention she understood what was happening she understood what the court was saying to her she understood what was going on and the fact that she asked questions regarding these two topics also shows that she likely did have a conversation with her attorney about the substance of because d n a and fire camp are not the types of things that she would have her attorney would have discussed with her regarding the plea because those are things that would apply regardless of whether she was convicted after trial or whether she pl guilty and so there's simply not the kind of things that would have been discussed can i ask you about the i guess whether or not she was in custody at the time the person they was taken  it seems like again she was a minor she had an i q of sixty two she was accompanied by an adult at that time and she was in this police station room somewhat situated in a corner there was two very small room there's two police officers standing or sitting right between her and door do you think she really felt like she could stop in the interview at any time and walk honest question so the although she was fifteen at the time and the detectives did know that there was no indication in the in the interview itself that she had any kind of mental problems with her capability of understanding what was going on and there was no way for the detectives to have known that there was nothing to indicate that they took advantage of it was clear they told the grandmother oh they're just she's a witness we just want to ask her questions it's clear that's thirty point minutes into the interview or whatever that point was that your colleague across the aisle mention the the officer said we know you're lying and i mean they had a lot of information apparently more than they revealed to her or her grandmother initially and just unloaded on her at that point in time not saying they couldn't do it but with this particular individual it seems like they did she was more than just a witness think she was a person of interest to them at the very least at that time and then they started saying you're lying you're lying and confronting her i know that we have to interpret her state court claim as a mcmahon claim i know to get there but one of the pass regarding what you set out is even if we did interpret that as her having alleged that her counsel did not in do what he needed to do with respect to miranda i think ultimately say there was no miranda violation and i'm just not sure about them well going back to the beginning of the interview i and i think which honor pointed out is important which is that she was not considered a suspect and i don't know that it's clear that the police had additional information i don't think it's clear exactly how much they did know or how much they were feeding off of what i wanted to ask you also about your assertion that they had no reason to think that she had you know mental deficiencies for lack of a better friend who's being this is a person who can fire remember correctly at the beginning of the interview since she's a fifteen year old she doesn't know how to spell her middle name that's pretty unusual i think i actually think it's funny that your honor brought that up i also didn't know how to spell my middle name until i was about eighteen and my middle name is very simple it's jean but because my mother whose name was jean spelt it in kind of an odd way i assumed that that was how my middle name was spelled and actually was spelled in the very most simple way j yeah and i didn't know that until i went to get my driver's license and had to look at my first certificate so i guess it would have struck  i appreciate that and that was hopefully my point in telling that story but there are other other factors like out of the custody issue if i can just briefly go over them very quickly that would apply to the beginning of the interview which is that both she and her grandmother were told explicitly that she was not a suspect and there's no reason to doubt that based on the detective and the deputy's testimony in court they both said that she was not a suspect at that time and that is considered and they said that she was not under her arrest that she was free to leave and that she told them that she was there voluntarily and wanted to talk to them and the fact that she ultimately ended the interview by invoking her right to remain silent shows in fact she did understand and she could nature of the custodial nature of an interview supreme court in two thousand and eleven i'm not quite sure how that has bearing in this case but they did find in the verses north carolina case that a not so sure she was recently but we're not here on the direct appeal that case such as this show and i think that the questioning in j p was extraordinarily different from the questioning that occurred here  starters the did the person who is question in that case was twelve years old the detectives planted information and basically forced him to say there what i'm telling what i'm suggesting to you is the truth or tell me that your grandfather is a liar they put extraordinary pressure on him they use deceptive means coercive means of questioning that absolutely did not exist here of someone with sixty two and you have the the the tech to in the middle of the interview say listen i'm tired of you not telling me you're moving my patience i mean his tone really does go up at that point and either you're going to tell us what happened or what you know i mean it was kind of that route and so yes she wasn't twelve but i can't stand there and say that there was not some pressure exerted on her at that point the interview there was definitely a shift as the juvenile court found and as as counsel pointed out however even at that point i would suggest that it wasn't coercive nevertheless even if it was considered that was when shortly after that the detective realized that he should read her miranda rights and he did so however of course she had already confessed at that point so whether those that advisement was defective or not it's really neither here nor there and that wasn't really an effective way to go about arguing and it's not reasonable to suggest that her attorney should have further argued something that wasn't going to get her entire statement makes suppressed and it's i think was the most reasonable decision for the attorney to go the route that donna a couple of points on the miranda issue first the court noted that this case is not on direct appeal however that it's now uncontested between the parties that the court is looking at this claim de novo whether it's because at the suppression issue just like it looked at the suppression issue and i and then in a day over a review so the other thing that i want to point out was that this idea is that the attorney you had no reason to even try to do this because he was going another route to try to suppress the whole confession first opportunity to do more than one thing all the time you can make a motion saying we think miranda applies in the alternative we think it's involuntary and that's clearly what any competent lawyer should have done particularly in the with the idea that the entire statement doesn't have to go out what has to go out is that the statements made after the change in tone when it clearly became coercive at the point when ms lowe made