doubt as to the guilt of the fused or are relevant here if you choose has a defense worthy of consideration or whether the ends of justice would be better served by submitting the case for trial in addressing that standard the court has said that when our that analysis is premature at this stage where the supreme court has stated that the possibility that it finds it might be found guilty at trial is not a sufficient reason to deny him the opportunity to present any defense he might have  had a defense worthy of consideration but as a separate question on whether counsel miss advised mark you know this is wrong so you know if you have a rule that allows the withdrawal please within thirty days under the specified grounds so when misapprehension those are different things and i have a defense that i should be allowed is that i have a defense that involves government's involvement in setting up a crime there's no actual third party here looking to buy drugs all government agents justice should allow them to be able to present that better served by allowing him to submit it to the jury but i would posit that this is that kind of case it's not foreclosed as a matter of law that using drugs mean you're going to deal drugs he did want to raise entrapment defense and  i just point out that i do think it's something that a jury should be able to decide whether that fact is that you know this man is a drug addict who lives with a drug dealer but it's never ever used heroin or attempted to go out and deliver heroin before whether you know those factors that offense the courts found that mr jackson was compensated for doing drugs specifically heroin and that it causes harm to society so you know this court has held that you can't rely on factors inherent in the offense away some comments that it made at the sentencing hearing would you be saying we should disregard these after the fact monday morning quarterbacking type comments made at the post play hearing i do think that yeah i do think of the important another another type of drug but again that's something that the legislature has already considered one side and seeing the ranges for all these various drugs and these various amounts and this is a very technical statute several different sub par it's to consider again the kind of driv entrapment defense the state's initial position here would be that the defendant has waived this defense mr honors alluded to the defendant was aware of this defense the defendant discuss th defense with it is a trial attorney and thereafter made a knowing voluntary and strategic decision to plead guilty and in that way waive the defense and all no that pursuant to his guilty plea the class one count one count one was amended from a class one felony to count class two and additionally count two which was also a drug felony was this mess pursu t then the defendant apparently displeased with the sentence that he at one point in time actually agreed to an initial turns around and attempts to with withdraw his guilty pl on the very defense that he knowingly waive and rendered in making that guilty plea and as counsel stated they're not making an effective message point here and frankly that seems like really the flaw in the argument here i mean they're trying to piece he's essentially coming to court and not challenging the advice of the attorney gave him especially agreement that was good advice but nonetheless attempting to withdraw his guilty ple my next point would be it it seems that the defense is conflating the concepts of waiver and forfeiture here  they're arguing that the issue is preserved  he's arguing that he didn't waive it he didn't wave this defense in electing to plead guilty after receiving this advice because he preserved it in a post trial motion but  intentional relinquishment of a known right and that is precisely what we have here he knew of the right for the ability to potentially waive an entrapment defense knowingly forgoes that and pursuit of what was a police strategy and by the way at the sentencing hearing counsel actually consistent with that plea shraddha judy made reference to the fact that made reference to some argument that the defendant was induced to be here  made a couple of references to the slight evidence standard frankly i'm not certain i don't recall the briefing but this is necessarily the equitable standard out at a hearing on to commit the crime and that he lacked a predisposition to do so in and counsel's reply brief there's a complaint that i didn't clarify why this analysis controls over was certainly control there's also with respect to that there's also suggestion that i was relying on a second district case people vs barner and there i was just clarify that i've simply pointing out that the case that the defense relies on reply the that the defendant tries to backpedal this in argues that the thing that induced him is more relevant to the analysis of his predisposition rather than inducement but the but the state would disagree and submit that his in mission of the thing that induced him is most relevant to the abuse matter analysis and here the defendant argues that he was induced to commit this crime because in the couple of weeks before his arrest and one point in time  says once or twice and i think he subsequently says she were three times but in any event a couple of times the the informant asked him to get drugs for him so they're basically arguing that this is  and in support of that argument this the defendant relies on two cases people vs fisher people purses that day and in both of those cases the court did find the entrapment offense was a football but there it was because the defendant repeatedly rebuffed the informant multiple attempts to get drugs now here what the fundamental difference is is we don't have a defendant who has repeated repeatedly rebuffing by his own explanation he was simply an able to get the drugs and there's a fundamental difference between a mere inability to get the drugs that time and an unwillingness to do so generally and as they argue in briefing the defendant the defendant even admits at the hearing on the motion to withdraw that when the informant came to his house on the day question the informant asked can you still get me the heroin suggesting that i want to  more perhaps of these prior occasions where they discussed getting heroin he had indicated a willingness to do so but i just don't think that it's it's fair to argue that he's been badgered into committing this crime when he's apparently first of all there's one or two possibly three instances of asking and on at least one of those prior occasions he's indicated and a willingness to do so so what we have here is just simply the state providing an individual the opportunity to commit a crime and the individual doing so  with respect to the predisposition to commit the crime the defendant advocates a position here essentially requiring the state to prove that an individual not only had a predisposition to sell a very particular drug but also a predisposition to sell to a particular person and so i would just know i mean the crime here is delivery of a controlled substance but the defendant here typically dealt with cocaine as opposed to heroin i just don't think that that eliminates a predisposition in any event he is he he's exhibiting a predisposition to dealing drugs and that's evidenced by a multitude of factors yes seven prior convictions all but one of are for drug related crimes he's previously served a prison sentence for drug related crime and in fact at the time of this offense he was actually on probation for drug related crime he had actually i think he was five months into probation and despite being on probation he admits that he is a regular user of cocaine and in fact was having a hard time paying for this expensive habit and which was in part what you what you know what motivated him to utilize the opportunity of the states provided for here again as he as he admits he says that he says that is that the informant his friend was aware that he was having financial difficulties approaches him and says i know a way that you can make some money and according to the defendant's own admissions his response to that was that they he would he took it upon himself to go get the  offense yeah i'd be happy to move on your honor so so first of all to your point i would agree with counsel that it does seem like there is is the bit of an clarity somewhat in the case law with respect to your concern about whether the core whether this court can consider a court subsequent discussion of his read his or her reasoning to that to that end i would point that is our if i recall correctly i believe there's a general notion of law of that and determining that and determining the whether the court relied on an improper factor that that the appellate court is to review the entire record i can't say that that necessarily would include  something subsequent i will know that this is cited in the briefing just to be clear i don't know that that would necessarily include this was something i somewhat overlooked but i don't know that that would necessarily include a subsequent clarification but it sure seems like it what i mean here were a motion to reconsider the hearing in the judge's clarifying the sentencing basis beyond that i would also i would initially know with respect to center the air that these are medically forfeited there was no objection not raised in the post trial motion i don't actually believe that there's air versus on over and this court addresses somewhat in a case people versus rios in two thousand and eleven that there's a difference between considering the proceeds and said into the crime that being the actual money you get for the exchange and actually considering compensation for committing the crime now most most drug cases i would submit probably involve the proceeds and student to the crime and which case you're not you should courts i'm not supposed to consider that here however we have a defendant as the as the trial court explained we have defended who was actually tangibly compensated for committing these crimes beyond the proceeds as he admits his roommate was providing him with food housing and an a steady supply of drugs i've not aware of any case all this as compensation is related to money compensation and it would seem that the exchange you know getting drugs for doing this favor it seems like he's being compensated so in that way first of all would seem that it's proper for the court to consider compensation for that purpose even if that was somehow improper of the court is nonetheless allowed to consider compensation for other purposes related to the underlying motive the likelihood of committing a similar crime in the future and the need to deter others here the court referenced the need to deter others and literally the that the following sentence after the after he made reference to the sentencing here and then the sentence immediately after that the court makes reference to the defendant's unemployment status the his drug addiction and his criminal history all which relate to the motive for committing the crime and the likelihood of committing similar crimes in the future so for that reason i would submit that it's otherwise proper for the poor to consider compensation in the way that it did here even if even if that's all improper i would nonetheless the bet that that the weight that the court put on this compensation factor which i believe was literally a sense actually just part of a single sentence was so insignificant that it did not lead to a greater sentence the overwhelming majority i may be mistaken i'm going o the record my recollection but i believe that two of perhaps the three transcript pages devoted to his sentencing justification were devoted to the the defendant's criminal record which the court described as impossible to overlook iran yeah with respect to harm so first of all i would know that i don't believe that the court here actually consider this an aggravation the the defense attorney actually explicitly argives your honor you can't consider this an aggravation the judge his sentencing decision says i recognize that i understand i can't consider that and aggravation and i'm not specifically disavowing any reliance on this now admittedly the court later says and i quote the sentence is necessary to deter others the delivery of drugs and to our society is very serious it's very harmful so they're the court as is is not considering that an aggravation of what's considering that specifically with reference to the need to deter others i think there can be little dispute that the delivery of heroin and to our society indeed needs to be deterred in second even if this four finds that the that the trial court considered this  improperly an aggravation or excuse me considered it an aggravation i would otherwise cement that in fact that this is perhaps proper because here it's a somewhat unique circumstance where the where the defendant is being sentenced under the hatch of provision of  controlled substance act which covers undefined quantities of numerous controlled substances so like the sections that prescribe a particular sentencing range for a particular drug in a particular amount where the basic idea that the court can consider something inherent in the crime and that's the underlying justification for about law so but here the general assembly has not already consider the danger of heroin relative to these other drugs because again we're dealing with a catch all provision so the the judge is sentencing and a visual for violating a section of the controlled substance act that applies to all of and in that way the state would submit that it is not improper for the court to consider the particular dangers of heroin relative you're honest with respect to the sentencing issue of the state you know just argue that you know yes the court to consider compensation but he considered it for all these other things and it wasn't actually considered for compensation then he says i would actually just said the delivery of drugs into society is very serious it's very harmful that's considering harm the court also said it gave him more time because of the substance that being heroin that is considering heroin which is already you know in the catchall section the notion that the legislature didn't consider heroin as one of these catch all drugs that mix doesn't make a lot of sense to me so i you know i think the court relied on all three of those things explicitly in sentencing mr jackson and then just briefly returning to the entrapment issue i think that the state here is presupposing what i think is actually the question before this court it's jumping in and wants a litigator the underlying defense rather than what the court probably made me the proper threshold determination and you know and i think that the fact the state you know jump forward and ultimately to get the defense is is evident from the fact that it doesn't address any of the supreme court cases talking about the proper basis for trying to plea one being a defense worthy of consideration and that's