our next and final oral argument for the day is the last but st superintendent fayette sci  this case and that is how does the court assess prejudice stemming from the the ineffectiveness in the guilty but mentally ill plea which that may be the most complicated issue  but there are also some very serious questions for which there may or may not be answers that are actually procedural and nature here i just characterized the previous cases a very interesting case this is a very odd one in my experience i'm an old pennsylvania trial judge experience all old old old and an old pennsylvania correct and certainly be asking the other side of this that what we had was a occurred yes right and a record which demonstrates nothing in the nature of the kind of process that the state statute requires for g occurring in that interim is that right that's correct or so with that being the procedural posture of the matter not withstanding references by participants in the sentencing that there had been a tb in mind here yes and there's nothing in the record to reflect that there actually was a g b m i entered with the process that is required by the statute emphasized as a requirement by the pennsylvania supreme court and say yaga that's absolutely correct  other than but several people on several occasions perhaps adverting to a g p s there was no labeling his g p s my as i look at the commitment papers even when mr the last to camp hill the document has a series of boxes that can be checked one can be checked depending upon what the disposition was and how it was one box says g b m r he wasn't  happened it could happen pursuant to g b in my disposition and i don't believe that the project's question is about his incarceration or how he's incarcerated the question is he gave up his trial rights and agreed to the stevia mine and exchange for that too that for those rights that he gave up me he would he would guarantee this process which your on her has recognized as screen court has said is is not is mandatory and not waive a book and that process included you know  evaluations and reports with your guide to his mental health a hearing before he played about his mental health and findings related to his mental health at the time of the offense now there was a there was a report attached to the court's finding with regard to guilt on his guilty but mentally ill plea and then that will then you know as the court you know lead into a sentencing and be considered with regard to his sentencing to none of that process ever happened and at the time that he was given that g b i might he should have been given b m i process how the court not found him guilty but mentally ill he had the right under the statute to withdraw that plea and pursue his rights so his trial rights are potentially a standard or some other plea with the come out a guilty but mentally ill i understood i'm going pennsylvania law i got that this hearing about my mental health at the time the hands before i would plead guilty but mentally ill i never got that hearing they coun because the court was going to war was going to be to do it later that never actually occurred and he's been clear that that has not occurred and that his plea is the fact as of course of that consistency we don't have an exhaustion i don't i don't believe so your honor no quoted it verbatim for the court in his demo out explaining that it was a requirement and that the court did not have authority to take the plea without a hearing i believe he also even cited davis which is which is also very clear the failure of the proper process being followed prejudiced mr alaska as in so far as it denied him the opportunity to present to the court additional information that may have impacted the court's just position of the case and or allowed him to withdraw the plea is materially different from any claim that mr velocity has raised at any point in the state court is different from the claim that he raised in the district court and in some ways i different from the claim that he raised in is unusual he did lee said that his g b m i was defective he did say that it was defective but he did not he identified the only prejudice that he pointed out and the only prejudice then that any court a grassed was the fact that the lack of this hearing may have caused him to lose out on certain programming and treatment that he may be otherwise would have gotten within the state prison system i mean he to go forward and just whether the plea it happened i mean it was clear that he was pretty consistent on that fourteen b but we never have an opportunity to build a record with respect to any of these things in any state court proceeding b fact of the matter is whether you're pleading whenever somebody pleads guilty but mentally ill it does not impose you know you to a reduction in sentence it doesn't obligate the department of corrections to provide any additional could be referred for mental health treatment to an institution either by the court or by the county mental health agency right well i purposes of the g b m i hear you seem to be minimizing the difference between these two those two possibilities it's the but that's also the idea that he should be receiving treatment  in a mental health facility that he should be civilly committed but that's not a claim that he ever is not a claim that he ever raised that's not an assertion that he makes he doesn't say if i have this hearing i would be treated in some kind of mental health facility natural flows naturally from the whole process i mean that's a possibility it's what this statute says it's and beyond that when we look at what davis says we see the importance of that process being pursued i mean what more does he have to say this was defective and certainly the record supports that and you've conceded that it was defective although you know use that word so that the logical important that what occurs as a result of that is obvious is that he doesn't get the benefit of the court making determinations concerning his mental condition and then making sentencing determinations which have the potential of directing him to one place or another and one of those places is certainly going to provide him with much more in depth and significant mental health treatment than he would receive if he were sent to an f c if you disagree with any as well as a general matter looking at a guilty but mentally ill plea in the abstract or in a vacuum i do ready completely agree with but everything that your honor just said my principal complaint with respect to this argument is that it's it's one that was waived was an exhausted at that particular idea that he may be subject to incarceration and some other type of treatment sounding versus in the state correctional system is not a claim that he ever saw its implication to not following the process is there here under th is the actual claim that he asserted it is merely that the lack of a record caused him to lose out on certain programming and treatment within the state prison system and that is i believe very close to the exact phrasing that he used every step of the way through this process until we got to the thirds every step of the way he knew that he claimed that there was a three hundred and fourteen b problem right  fourteen the problem that there's no notice problem you know he went through the c r a taking a consistent position he comes now two thousand two hundred and fifty four taking a consistent position what's the exhaustion  well i believe the exhaustion problem is that you know now it's a procedural one is that now we're standing here in front of a federal appeals court whereas if these claims have been raised at an i will i will move on from that argument would the court wish for me to address the aggravated assault claim well let me ask you this if if literally what would happen well i guess if the if the court's remedy were to vacate the judgment of sentence and re man for a new plea proceeding or further proceedings with the sentence being vacated we would have the opportunity to create a better record at the time of the guilty plea i think that that would basically render moot the issue with respect to the aggravated assault trances sorry when you say a better record what do you mean specifically criminal information states that the defendant threatened i i implied that he threatened the constable and then attacked him and that led to the scratches and preparing for today's argument i ascertained that the criminal information actually refers to him threatening the other individuals who are the subject of the intimidation of witness or victim charge and have discussed all with the constable so to be extent that i misinterpreted that and then relayed that cracked that's correct your honor and that's and that's my my position here that the the facts the facts with respect to be aggravated assault charge and in fact some of the other documents relative to the friday which mr lask was has signed did signed on to write refer back to the information the you know the universe of information that was available to police counsel when mr of alaska's whether or not to enter a guilty plea was not limited merely to the charging documents in this case counsel would have had access to the discovery materials and other information with respect to what the column all could and could not prove in this case merely looking at the information and deciding whether or not there was a reasonable basis for advising and guilty plea for that reason i don't think that there's any kind of crippling claim with respect to th assault claim is something that was put squarely in front of the state court and was resolved in that fashion so i believe that the i believe the state court would be owed some deference by federal court i'd just like to address the two issues one with regard to the aggravated assault charge that though even though the chart or not the charge some of the brady documents might have reference a tent when record of when you think deeper and look at back and edition all documentation which he reviewed with counsel which where and where he made acknowledged and it included in the golen judgment that he had read the if the question of scratches and bodily injury were problematic it with regard to their it with regard to the man why he would have played even if he didn't meet the elements if you're nick what if there's the but bottom line here is the best course for you is this case is going back and are not having to reach the ag assault or attempted a school that would be ideal which is why we focused on the g b i mine and there's no other questions thank you thank you to both the counsel will take the case under advisement and