stage post conviction petition where it applied too stringent of a standard and misunderstood mr map's claim there's no question here that the majority applied too stringent of a standard the state does not even dispute this instead the state argue that the majority reached the correct result but the majority cited to boilerplate st stage post conviction but expected the defendant a non attorney to meet nd stage standards the result cannot be correct at the st stage when the majority applied nd stage standards this court made itself clear in its decision and hodges that the survival of the threshold for survival at the st stage is so low because the these post conviction petitions are drafted by defendants who have limited legal knowledge this court emphasized that the allegations have to be taken  true and they may only be summarily dismissed as frivolous or patently without merit if the petition has no arguable basis in law or in fact at the st stage mr knapp was only required to state the gist of  constitutional claim which he did mr knapp alleged a violation of his right to testify on his own behalf the right to testify is a fundamental right and it's one of only five decisions that is solely the defendant's  course should be leery of denying a right this important at the st stage especially without the input of counsel mr knapp allege that counsel told him erroneous only that because his version of what happened that night was not supported by evidence that he could not testify taking all well pleaded facts is true this advice was incorrect under illinois law there is no requirement that  corroborative evidence is required in order to testify on one's own behalf the majority of the appellate court expected mr knapp to prove that but for counsel's errors there was a reasonable probability that the result of the proceeding would have been different however this is not the standard at the st stage the standard is that it only has to be arguable that the result of the proceedings would have been different which here it was ar as justin's justice mclaren's dissent pointed out mr knapp's repos testimony would have a tech the credibility of the witnesses of each and that this was a gang related  argument at trial the state repeatedly said that gang affiliations ran deeper than friendship and that was the only reason that the state could give as to why mr knapp would stab his best friend sends the  grade mr knapp's testimony would have also explained why he was carrying the gas cans into the house and this is because he witnessed mr rodriguez burning his  stained shirts in this fire pit near the house at trial the state called the gas cans the most powerful evidence that mr knapp knew he committed a criminal offense and at trial he was not allowed t hings to counsel's erroneous advice he was not allowed to present this testimony to rebut the most powerful evidence also there were several questions from the jury which is evidence that the evidence here was not as overwhelming maybe as the state seemed to think it was it certainly arguable here that the results would have been different had mr knapp testified the majority here though improperly and unfairly expected mr knapp to overcome the nd stage presumption of trial strategy which is which is not allowed at the st stage and as discussed before because this was based on a mis apprehension of law the advice could not have been trial strategy the result here could not have been correct not only because the majority held mr knapp's petition to too stringent of a standard but also because it misunderstood his claim we do not disagree with the states as assertion on page sixteen of its brief that there are different types of scenarios in the right to testify cont mr knapp's claims fall firmly into the rd category that but for counsel's erroneous advice he would have testified mr knapp has limited legal knowledge before dropping out of high school he was unrolled in special education classes he had an attorney and trial and he trusted his trial attorney to get to know the law in illinois and to give him proper advice mr knapp had no reason to doubt counsel went off the record counsel told him that he could not testify to his version of events without corroborative evidence counsel told him he was legally precluded from testifying to his version of events because he did not have corroborative evidence here the court told him it is his right to testify but the court doesn't know what mr nash proposed testimony would have been and mr knapp has no reason not to trust his attorney so he's not claiming that that he was you know pressured into not testifying he's claiming that he trusted counsel's advice which she later found out was wrong and that is why he gave up his right to testify because he was told that he legally could not testify here the majority here says the current trial court to go   st attorney told you but so that was a bit of an ironic statement there but in this case in particular again i counsel the judge could ask him what counsel told him and he could waive that attorney client privilege but i don't think that he or other people who fit into this rd category would at the time he didn't know that he could have testified at the time he thought counsel's advice was correct i mean why wouldn't he so at the time counsel's advice to him seemed right and i don't know that the judge has to inquire further into that and proximate cause of his attorney's representations to him that there must be corroborative evidence supporting his testimony so he acknowledged that he agreed with all of the trial court's questions and there wouldn't necessarily be pressure and the other things the court sometimes asked about because he was choosing at the time he was choosing not to testify based on the attorney advice he did not yet know was incorrect the judge like i said before the judge told him it was his decision but the judge did not know what his proposed testimony was and that the and the judge did not know that there was not corroborated corroborating evidence which we know in the attorney should have known is not required but mr knapp would not have known that at the risk of sounding like a broken record there's no reason for mr knapp not to have trusted his attorney when he told them that he could not testify absent this corroborative corroborating evidence majority here also found that there was no contemporaneous assertion made to the court or at any time but the defendant when asked  honorable court to find that brown and its progeny do not apply in cases such as this one where the defendant reasonably relies on counsel's erroneous advice to his detriment in its recent decision in hartsfield versus dorothy the th circuit said it was troubled by the obligation that illinois appears to impose upon a defendant to contemporaneously assert a right to testify in circumstances where defense counsel has just silence the defendant indeed it is a logical to require a defendant to prove that he reasserted his right to testify after counsel who he should be able to trust told him he was not legally permitted to testify this is also true of  the slippery slope fallacy relied on by the state and that is present in coleman and brown that cautions that any time counsel advises the defendant not to take the stand a defendant has an arguable claim of ineffective assistance of counsel this is not like many of the cases where defendants are claiming that they got bad advice because counsel gave their honest honest and vice that hey if you testify it's going to hurt the case this is a totally different scenario where counsel told him incorrectly you cannot testify because your claim is not backed up by this corroborative evidence so those we'd like to draw make a distinction between those types of cases and that's why we would ask that this court holds that brown and its progeny do not apply in cases such as that one  cases such as this one where defendants are told that they're legally precluded from testifying not merely that it would be harmful to the case if you were to testify this kind of conversation took place so that's the purpose of the you know the st stage of the post conviction hearing act is to bring about these record conversations which is why it's incredible that the majority here found that nature off the record so that's really i mean that's really the purpose of the st stage is to it's such a it's such a low standard such a low threshold to just mov these complaints from the st stage to the nd stage and that's all we're asking for here we're not asking for a new trial we're just merely asking that this moves to the nd stage so that counsel can be appointed and counsel can help sort out any inconsistency or any of record advice and just really clarify even what a defendant is trying to get across in his post conviction petition these this court knows i mean that the st days petitions are often hard to read full illegally because these you know these people they just they don't have legal knowledge and especially when you're making a claim of a fundamental right it just makes sense for the threshold to be so low to get that attorney help sort through the petition make it easier for the trial judge to read make a justify maybe in certain of the three right to testify contacts but not in this one in this one you know in the council gave me say that he feels pressure or that it's not his choice when he thinks that the advice is correct in that the decision he made is for the right reasons and is the legally correct one  definitely not in this this cont for these reasons mr knapp respectfully request that this honorable court vacate the circuit court summary dismissal of his post conviction petition and reverse the appellate court's decision and remember a cause for nd stage post conviction proceedings which it was alleged that counsel prevented defend it from testifying so is proper for the appellate court and reasonable for them to construe defend its claim as one that counsel prevented him from testifying now before this court defendant seems to abandon that argument and argue that counsel's bad advice caused bennett to give up his right to testify and as to this defendant has failed to establish that he was even testify at trial as to events before and after the attack on his victim defendant did not wish to testify or contest the factual basis of the attack itself as set forth a trial defense proposed testimony was that d having met codefendant once before and a house party in chicago he did not know him defendant also wanted to testify that the reason he attacked and the reason for the argument and his subsequent attack on the victim had nothing to do with gangs but rather had to do with a dispute over girl as to events happening after the attack defendant where she testified that the only reason he was seen holding two gas cans at the party house he fled to after the attack was simply because he was moving the gas cans from the back or fire pit where a codefendant was burning his clothes and destroying evidence of the attack that it just happened but it is important to note here and also different wanted to testify that claim of self defense or defense of others defendant's testimony also would not have disavowed his role in the attack defendant merely wanted to testify as to a different motive for attacking his best friend that had nothing to do with gangs and was just simply about a girl and you also wish to testified that the reason he was holding those two gas cans is simply removing them from the back or fire pit which actually shows further court a nation in the immediate aftermath of the attack with so it cannot be said here that defendants proposed testimony would have even arguably changed the optima trial or that he was even arguably prejudiced by not testifying in addition  told police and that in the immediate aftermath of the attack defendant ran up could have been inside brandishing a knife and bragged and i quote that's why they call me machete in addition defendants testimony would have placed defendant at the party house in the immediate aftermath of the attack within minutes of the victim's friend calling police and getting the life saving medical attention that the victim needed at that point and last defend also said that or excuse me codefendant also told police that the reason that defendant was looking for the gas cans in an attempt to destroy the clothing and evidence of the attack that it just occurred so for would have advised defendant given the contents of defendant's proposed testimony that testifying would have been a good idea in this situation defense testimony would have actually been very damaging to his defense and theory of the case which was that he was simply following his friends home to make sure rather to the train station to make sure that they were safe again defendant this testimony would have placed him at the party house within minutes of the attack as he fled and instead of at his best friend side as he lay dying in the old days parking lot and this in conjunction with the overwhelming evidence the stablished trial showing that defendants exhibited consciousness of guilt when he saw oncoming police marked police cruisers approaching the house he fled inside when police entered the home and made contact the defendant they observed that he if appeared to be fake sleeping through the sweaty and out of breath when they took defend in he began yelling gang slogans and gang threats about his gang and threaten the lives of the owners of the home as well as the arresting police officers  in addition and as for reasons already mentioned defend its proposed testimony would have arguably strengthen the state's case of accountability that defendant regardless who did the stabbing was accountable for co defendants conduct and this is because defendants proposed testimony would have again showed further court a nation with codefendant in destroying co defendants evidence he claims in the immediate aftermath of the attack so for these reasons no reasonable attorney would have recommended t positively rebutted by the record and that at trial defendant was admonished as to his right to testify he repeated excuse me repeatedly declined testifying and told the trial judge that he understood that the right he was giving up and still persisted in not wanting to testify in counsel added at the end of that admonishment that he had discussed this right with defended at great length and that he respected defend its decision but we think defendant's claim here is best read that counsel gave him bad advice causing the defendant to give up his right to testify rather than counsel preventing me from testifying which is positively rebutted by the record and by this court's decision and people be brown i also want to point out on that note your honor that defendants reliance on the th circuit case hartfield the dorothy factually concerned a claim where defendant argued that defense counsel prevented defend it from testifying and we don't think that that's what defendant is arguing here so that is factually distinct from from the facts of this case your honour's as a arguably deficient and if there are no further questions people ask that this court affirm the judgment of the appellate court thank you to touch on a few things that opposing counsel sudden his argument so mr knapp actually he claimed actual innocence in his post conviction petition so why while he may not have said some of the phrases that he needed to to make his argument totally clear that's not uncommon in the st stage proceedings as well as yes he did  include mr rodriguez's statements some of which were very unfavorable for mr knapp however mr rodriguez he did plead guilty in exchange for nine years in this case  everything he said you know may not have been completely accurate but an attorney would have known what to include and what not to include in the post conviction petition this advance to the nd stage mr knapp could have had some help with things to make his claim more understandable and you know an attorney would have helped and you know to leave out some of these unfair wrote unfavorable things that codefendant said while he was questioned by police also it doesn't matter  ether counsel a reasonable attorney would have advised him to testify or to not testify ultimately it was his choice even if counsel had told him you know this is just it really goes against your best interest it would really be detrimental it is ultimately his choice one of his only five choices totally his to me so even if it would not have been favorable for him it was his decision to make and it's one that he should be able to make with knowing all possibilities and knowing the law and not have been told that he could not testify because he didn't have corroborating evidence so it was totally his decision and whether counsel would have thought it was a good idea it doesn't matter in this context and also his his affidavit was pretty clear even if some of his post conviction petition was not he did make some you know the state says that they're treating this as bad it as a bad advice case not as precluded from testifying was erroneous advice case and he did say mr knapp said counsel told me that because there was no evidence to support my story i could not testify he said the answer elicited from me by the court regarding whether i wish not to testify with the direct result and proximate cause of my attorney's representations to me that there must be corroborative evidence supporting my testimony and then he also said head you know that my right to testify was not contingent on any extended evidence i never would have waived my right to testify a trial so his affidavit it was pretty clear