thank you justice may please the court counsel my name is doug johnson i represent the petitioner maurice jones mr jones pled guilty to armed violence received a twenty five year sentence he did not attempt to withdraw to the trial court level he did not file direct appeal and then a timely post conviction petition was filed this court i'm sorry the trial court dismissed that petition at the st stage and this court reversed that decision specifically saying that petitioners assertion that his counsel that assisted him in entering his plea was ineffective d was not fanciful the allegations regarding that were not fanciful therefore the case was and just going to summarize our allegations in the post conviction we allege and supported it with the petitioners affidavit that he received ineffective assistance of counsel because he invoked his right to counsel when he asked for a lawyer repeatedly when he was taken into custody was taken into custody in the afternoon about three o'clock and the statement his written statement came out little over twenty four hours later and we alleged that he repeatedly asked for an attorney and those requests were denied he would continue to be question without counsel present also in the a and slightly related issue or related issue we allege that he had an attorney that his family had retained and sent to the police station mr goldman and mr goldman arrived inside to speak to mr jones but mr jones was never told there was an attorney there and we also alleged among other things about he was tired during the interrogation and he is clothing was removed early on most importantly in the petition we set forth that mr jones's girlfriend jennifer have planned a robbery with was also in custody that's not disputed she was the mother of this child and we allege that the police officers told mr jones that if he were to talk were to make a statement mrs baines would be released we also allege that after he was charged mr jones told his nd attorney that he had mr crewe low who represented him at the plea that he told all of this to that attorney but no motion to suppress was filed i don't believe those allegations are directly rebutted by the record they certainly i believe would be rebutted at an evidentiary hearing and that's what we're asking for of course and i believe this case based on that this case should proceed under strickland certainly a counsel has petitioner has a right to effective assistance of counsel and as this court stated in its prior opinion really the only evidence against mr jones was his statement therefore we believe the nd prong of strickland is matt because if a motion to suppress had been filed and it was granted then it seems very reasonable conclude that mr jones would have proceeded to trial if indeed there was a trial because of a lack of evidence beyond his statement direct the kind of focused as the state did a lot and has the point of the attorney coming to the station we believe that is a unique factor in this case certainly not completely unique but something that sets a little bit apart from a lot of cases  but there is this court pointed out in its footnote in the prior case if mr jones asked for an attorney we don't need to look further to see if that a chariot attorney showed up that's a little bit different issue if he asked for an attorney and they continue to question and then he has about the protections of the th amendment now as to whether or not these allegations are corroborated or not i don't think it's disputed that an attorney came to the station that mr coleman came it's just that the state says he was late that after he got there just after mr jones had made the statement we believe that's an issue when he got there could be resolved never to answer hearing as to our assertion that mr jones was promised that jennifer baines would be released if she made a statement i believe that's corroborated by the facts that she is a codefendant she was there at the station she is the mother of his child he didn't talk for over twenty four hours and then something happened and the police officers took as the reports reflect the police officers took him to her after they say he made a statement so it appears he must have expressed interest in seeing her i'm sure the state d will argue well they just happened to take him over there there was no reason not to but i think one could infer from that that actually her name came up and this is day while they didn't release her they did do the minimum and allowed him to see her what exactly or why that was done and what exactly happened i believe could also be resolved in evidence or hearing the state response that neither side nor granted limited evidence or hearing on it and the question of whether the attorney came in when he got there but the state argues that we should attach the affidavit of mr goldman and we could have and we did and this is what the this court has already decided that under collins we were not required to do so i would also add that the record is not clear certainly it's clear as to whether or not that was attempted and i won't go outside the record but i think the realities of how this state says with regard to the jennifer gaines argument that there was leverage there that is that she was allowed she jones was told well you mr vane's will be released they say well under has any police officers are allowed to lie to suspects and we certainly understand that absolutely but what the line is crossed when leniency or some type of specific benefit is promised and here i believe that telling mr jones that miss baines will be released is the type of specific benefit that can't be promised which makes his statement involuntary we do not dispute a police report claiming it is a one hundred percent false in every way just that certain aspects of that port were false the key things being that mr jones asked for an attorney but we did certainly try to hide a police report and not deny it and we'd like the court to review what the status submitted and for those reasons alone  fact that goldman is in the record the goldman did file an appearance in the case later i think also suggesting that he did indeed appear he found the parents that is in the common law record so for those reasons we think th case should be remanded for those in the other reasons in the written brief should be reman can have you completed this part of your argument sir yes your honor thank you i just just jorgen simpy you have any questions that you wish to ask did anyone an attempt to get an affidavit from goldman yes our office did i didn't know i could go into that outside the record but we did attempt and we believe with subpoena power at an evidentiary hearing that would give us more leverage to bring him in show and making the substantial seans absolutely and are you familiar familiar with the principle that all evolved very guilty plea waives all under the circumstances this case where you have a written statement that is basically the only evidence against the defendant you have a situation where the mother of the defendant's child is also in custody you have something that lasted for twenty four plus hours where a man was left where the report says he was questioned for two hours then just stop nothing about why it stopped and then left in a room for eight hours after not saying anything in the magically makes a statement the following day and also the fact that his undisputed attorney came to the station to talk to him i think and under all those when one considers all of that would not agree with that i think there was also a dispute between at gaines is here and there was a dispute between whether or not baines would have cooperated or would not have the state and the defense were arguing about that so i don't know if there was representations of the  was added late and we also have alleged that mr jones had very little time to can salt with his attorney so whether how long he had does not mean that he got proper directions throughout that time you read the transcript that is in the record i just respectfully disagree with that with us being able to infer from that that mr jones was fully and completely informed and completely  that the attorney arrived at the police station mr heard what we've alleged it and it does not rabbet but the record and then as i stated it is he did file an appearance in the case in the common law record in this case ok so we're taking those actions as an inference that he was there at the station and in a police report there is a police report there reflects that mr baldwin arrived as i stated the state state the state says he was too late i did that is that the police report that was attached or is that the police report that the state says should have been attached i think that's the state the police but the state says should have been attached ok and you have a problem with that if that's the case and if you had access to it why wasn't it attached did not think it was necessary we made the allegation that mr goldman was present and support it with sense that you have made a substantial showing of a constitutional violation and not just presented to the court something that was not frivolous and not patently without merit or you did not merely set forth the gist of a constitutional violation unfortunately here too we did not have a lot to add as i stated i don't want to go outside the record but because these things are gathering the proof in this type of situation without the subpoena power to bring in people is a bit difficult  so you do have to show a little more in many cases in this case we showed what we could write well one of the things that you wanted to show is that mr goldman was at the at the station and maybe a time that he got there wouldn't that have gone a long way to establish one of the issues that was rather illusory the st time around having some of that what would have been helpful  but only mr goldman and mr and the police officers know when mr goldman got to the station he did not see mr jones but it would have it was noted there that he came at a certain time mr goldman may not have given you an affidavit but the police report notes a time correct yes the police report that's what i said the police report notes of time so there we have proof to some extent  that he was there now if the court wants to believe the police report then i understand what you're saying but without an evidentiary hearing we don't have a way to prove when they got there and i have seen that it's everything there is considered as documentary i believe it's not customary dollars call witnesses so i believe it is documentary ok and the state complains that they're not able to present or animals complaints will use that word for now and will discuss that with mr longdon but that week you know they can't they can't do certain things they can't produce certain documents what's your position on that i have no with what they produced i do not i do not object to them producing certain documents and i have seen it before ok a judge or is that he wrote a rather extensive disposition on this  particular second stage and are year are you saying that she knew just issues or that she was simply wrong on some of the issues and saying that what i'm saying is that what i've spent my time in i'm here today about the defendant invoking his right to counsel was brushed over in that the only it it it was not directly addressed i can't say miss because i think what the what can be inferred is yes it was addressed the allegations were called conclusory and uncorroborated but the issue was mostly addressed in that order with regard to goldman goldman showing up and that's so i think they are two separate issues and the goldman issue has become such a focus but i don't want to forget the fact that mr jones requested counsel and it was you seem to those decisions i think that goes to the where she seemed to say that the police officers police report of when they got there was because the police report reflects well mr goldman got know from cases in the past and i'm sure you've seen them in your your career that police officers can not are they can not tell the truth when they are questioning witnesses they can say that somebody said you're the shooter when in fact that was never said things of that nature but what's the difference then maybe as we have here the difference between a misrepresentation and a lie and what do we have here the the i think what we have here is dispossessed is police officers can certainly say i just talked to your buddy in there and he told me you were the shooter what's the deal all part of good and understood interrogation but when he certainly can't say  well sir if you just confessed to us we're going to let you go home your family because basically that's going too far because that's offering a specific benefit and so what we have here is real close mr jones and miss baines had a relationship they cared about each other and she was the mother of his child son and promising him that she can go especially when they're together and who knows how often he saw her and that might have struck someone that's going too far that specific benefit and i would say overboard over there says will and causes date to be involuntary mr jones is not new the justice system is he no ok and he's talked with police before i assume i would that i would assume so too yes ok how i mean how is it that he would believe that representation when miss baines has already talked about her part in the activity  there regarding i think the intricacies of accountability felony murder those types of things i don't have a handle on and have to review constantly and still don't have a  i'm aside from the three justices i'm talking to and perhaps a counsel for the state it's really complicated stuff what maurice jones did know is that she was not present he as his position even in the written statement was this guy came out of the blue neo wasn't supposed to be there there wasn't supposed to be any gun involved when he got out of the van with a gun and i saw it for the st time we tried to stop him from doing it and then he did it and all she did was stay away from the scene and drive a car so i don't think maurice d jones was thinking well under common design eccentric cetera et cetera and they could maybe rope in for a penny in for a pound responsible for anything that happens i don't think he was thinking that i was thinking well she wasn't even there so they can get her bond and she can go home and take care of our job and that's that's why i think he would believe it i think the fact also that he talked to the police before had some experience cuts in our favor a bit because it shows that he would know enough this is rule you know interrogation or suspect defendant one hundred and one is you don't talk unless you're promised a specific benefit perhaps so that the  representation was she could go home on bond not that she would be released from obligations or any liability in this particular offense i think maybe i guess i guess that to be specific i thought it was released as is the record reflects so i think it would i guess i was adding that i don't know what he would have thought but i do believe it's reasonable for him to have thought as well i'm the and the bad guy here their worst neo's the bad guy i'm one of the bad guys but she's only minimally involved so yes i believe she could be released you're you seem you've emphasized a couple of times the fact that he was questioned the they took issues and his shirt i believe he was tired and then twenty four hours later magically a confession appears do you have any authority that would indicate that a timeframe of this nature and the circumstances that you're talking about would be some indication that the defendant was coerced or that his confession was not knowing  i believe i don't have can't point you to a specific cases my understand the case law is it's the totality of the circumstances and i think things like the fact that his shirt removed his shoes remote yes you can do that but it does take a step toward breaking down someone's will can you question someone for twenty four hours i've seen more than that forty eight hours etc that alone isn't enough but when we have here well we put in the room he talked for two and we talked to him for two hours where he denied any involvement whatsoever and then we don't see any reason x and then all we see is that he was then left alone for reasons why wasn't he taken to a holding cell right away and then the next day with overboard but i cannot no i can't say specifically if you take shoes and sure i can't give you a case that says if you take the shoes in the sure it's involuntary if you do it for over twenty four hours it's balance or i think you have to look at each case specifically and all the circumstances choir's defendant to attach affidavits or other documentations or just porter's claims or explain why he's not done so the people are well aware that the case law says that in a typical  people that while maybe not the standard it is not uncommon that defense attorneys are often willing to allege their own in effect of this in order to assist their client regardless this matter is not the case in this case defendant has been represented by counsel same counsel was appearing today during the end or at least the which the citation is in our brief for the proposition that the four affidavits that were attached to this record from the family members could have at least supported defendant's claim that mr goldman was retained to meet with defendant by defendant's family and not for example by codefendant jesica bank staff which do so and chose not to explain why he did or did not or could not do so the people have valid that defendant has now stated i'm sorry stated on the record that indeed they made an attempt to contact mr goldman and that mr goldman may not have been willing that could and should have been stated on the record whether in defendant's affidavit or sometime during the nd stage hearing that would have cleared up at least some of those questions and again the representation made now while the people certainly have no reason to not believe that that's accurate it's not evidence in this wrecker the people also  disagree respectfully with both counsel and with the court's footnote in the st case that the police  similar to defense counsel would have been unwilling or likely would have been willing to bring sent an affidavit or explain again that they had attempted to contact the police and were not able to do so the people i don't know that we can blame but i do think it was sort of a tongue in cheek when we asked this courts to  to hold that the people would be allowed to attach affidavits from parties and that was in response to the statement that defense counsel had made saying that if anything the fact that goldman's affidavit was not presented should be held against the people so i don't think we complain that they were not able to do that but we did suggest that in addition to attaching the police reports the people i think would have been more than willing to attempt to obtain that affidavit from goldman and or the police officers and i do believe and again this is this is certainly not something i am serving with definite but the people believe that it is quite likely that the police would at least in movement to give an affidavit which said that they would testify consistently with their report which as defendant acknowledged stated that goldman not only showed up after the defendant had given his statement but that goldman asked st to speak with just a bang the codefendant and then asked to speak with the defendant and defendant for whatever reason  suggested that he did not wish to speak to mr goldman which would at least implicitly refute the supposed repeated  standard is a low standard it said just standard but we would add as we did in our brief that that is also at least partially in place because of the concept that a defendant is typically pro se and wouldn't have the knowledge or the ability to know what needs to be included in this particular case that's simply not  say defendant was represented by counsel from st stage and more importantly even if that same standard applies and even if this court had analyzed it in light of the fact that defendant was represented by counsel for a stay that same does not hold true through nd stage simply speaking substantial showing of a constitutional violation under the much more difficult nd stage standard such as to require a rd stage evidence or hearing it can't be a good policy to require rd stage hearing any time and every time a defendant especially one represented by counsel from say john edward makes that includes aris claim unsupported by sufficient affidavit and or jessica bank statements once she pled guilty and once she was sentenced if indeed this was his girlfriend who he cared about and if there was a reciprocal to goldman and that could have confirmed or refuted the police report also related to her culpability a defend as as was noted has experience with police this and to say that she remained in the car she had nothing to do with this that's inaccurate she did remain in the car she did not participate in the robbery herself but she acknowledged that she not only gave defendant the information after he had said hey i need a way to come up with quick money  about the system that the job that she was that utilized to bring money to the bank she also participated in the planning with defendants so yes it is unrealistic to believe that defendant would have believed that she would not only be released but would never be charged and i do believe that they don't even assert that also believe that she would not be charged i cannot disagree with counsel that the liability  accountability for others is somewhat complex however i do believe that defendant is simply raw in suggesting that people versus johnson and not people versus fernandez jurgensen do you have any questions as my question really goes to the defendant's st allegation that he requested an attorney repeatedly during the twenty four or twenty three hour interrogation and that is supported by his affidavit which you believe to be conclude your so my question to you is what more would he have had to put in his affidavit to support that claim well to follow her find what else could he have put in the rest of the statement if the rest of the statement gave more explanation of  allowed to go to the bathroom asked for and was allowed to speak to his girlfriend his code of it and that he then twenty four hours later there's nothing the suggest he was physically as i asked for an attorney that is not a conclusion that's his statement i uttered those words presumably in the presence of the police officers isn't that enough uts why he would have then later you know couldn't couldn't fast and had his will overboard and given that we do have the fact that gold was there the fact that we have a police report that says ok an attorney asked to see him and he said i don't want to see that certainly but if we accept the state's representations here he had already made a lengthy statement by the time he's made aware that goldman's there his alibi made a request for an attorney  now have to take in a face value and goldman the police report just says goldman doesn't arrive until after he's made all of these statements what would be the point of seeking an attorney at that point the point but but the point would be that even if you made your statement for whatever reason that debt if you see an attorney at that point in time you could always have the attorney say ok let's argue that you were coerced let's say now that you want to move to withdraw would that be sufficient input and that's all way way outside the record there is just nothing in the is if this court determines that that self is sufficient as we argued that and a rd state sharing should be remanded for a limited  purpose and if goldman i mean one of the theories about not having to get an affidavit from your trial counsel is that they you know they don't like to put themselves in a trick box goldman arrived is pretty critical information wouldn't he be putting himself so potentially in a trick box if he had been contacted early in the day and doesn't yet there until much later in the day something that a private attorney would not want to put into writing and swear to under oath i don't i mean again i obviously expect that i don't think so because you know the fact that you're retained by somebody whether it was defendant or codefendant i don't think that that requires you to you know dash out of the you know out the door but what the ins it talks about is a reluctance by counsel to want to admit any shortcomings in their performance and now ye heard your argument saying that in your experience defense attorneys are we are more than willing to fall in sort and while that may be in may very well be the other way you know and in writing that they made mistakes no dispute we are not suggesting that all defense attorneys by any means would be willing to my question is doesn't that someone explain why perhaps mr coleman did not relish the thought of yeah in his affidavit great i heard your argument on that the st time but my point is don't we make that assumption that many cases have made it trial counsel simply does not want to be involved doesn't it cut both ways oh certainly certainly make that assumption i have another question for you have that yes i notice i believe it was in the defendant's reply brief that had they attached family  member affidavit still is are inherently biased i mean how much weight does can you put in an affidavit of defendant's family that says oh yeah we did all these great things and how much weight would that really have it would have more weight than not saying yes i mean obviously would it i mean and again this court might say at least the same way we're suggesting that and that he the outcome would have been different in other words he would want a trial right correct in jones one we made an observation quote furthermore it does not appear that without the defendant's statements the state correct why didn't you argue waiver in your brief i think you just alluded to it but it isn't negative maybe main point of your brief i believe that i  sorry for what he put the victim's family through and what he's put his own family through in the event that the defendants would be successful in showing ineffective assistance of that statement was on the record regardless and i mean i don't think you are racist because you go back and and i don't even know that we should have a rd stage hearing on it much less that it would be a race even if we suppress his statement but as you suggested there's there's more than his statement we have jessica not only did miller agree to testify we have jessica bangs statement that laid out exactly what happened we have the videos we have the testimony of the victim we had people that saw  miller and defendant get into the car and drive away so we did have a lot more than just his statement that again it for lack of a better term speculation unquestionably even assuming defendant did indeed you know say want to file a motion to suppress that is something that council would have had a way probably should have discussed other questions or any other concerns and he said no as you noted earlier in question in counsel this was not something that was just sprung on him at the last minute  offer was made and and again as we say cited more specifically in our brief this was not simply something that he agreed to a twenty five y plea that it could have been a maximum thirty it could have been forty five to life so yes he was aware of all of that he made an educated decision and now for whatever reason he's trying to type of work and do you ever seen a nd stage sharing where witnesses are actually call your honor again off the record i do believe there have been cases i cannot do one i can also states that again anecdotally i know of at least one case and i believe there have been additional cases appellate level this court has allowed the people to present affidavits from defense attorneys i am not suggesting that that is the law i'm not suggesting that is done frequently but yes it has been done both that all and it has been done where as i sat that this court has allowed the people to present affidavit as i said while it was tongue in cheek it was at the invitation of the defendant that this people said we representation that that he talked to mr goldman and mr goldman was reluctant to do so i suggest that if he had put that on the record that it would be and least one issue wouldn't no question and how how is it possible that just on coal black and white documents can end  again i don't think we could allow on just that documents a credibility determination well then why would the police issue well why would you want to offer the police affidavit saying they would testify consistently with their report wouldn't that just invite a credibility decision well it would be potentially but it would also be something documentation or report that rebuts defendants self serving conclusory claim ok so is that a a credibility from a nation i'm not sure but i also suggest the line is kind of blurred but yes to some extent credibility determinations can be made to a self serving conclusion a statement if it's rebutted by the record and at that point it would be rebutted by the record all right the the we're arguing and we're talking here about the fact that attorney goldman arrived at the police station but it was too late to assist to assist the defendant in his statement how do we know number one when the statement was specifically made in number two that goldman arrives late the police report the police report states exactly what time the interview are the tara geisha whatever you want to call it was reinitiated and at what time the written statement was made and then separately so as that goldman arrived after the act and that he requested to speak st so it is that police report which and again we weren't it's using the defendant or counsel of any impropriety as much as saying it's ironic an stage again i believe that to some extent if we want to differ specifically yes to some of sent we were but were able to do that if the record refuse the affidavit when was it in the trial court was it argued in the trial court in this fashion that the police report was tendered judger as any in the trial court no of course not and the reason being is because defendant pled guilty and there was no reason to include that police report so it was not where in the record then do we know other than this police report that mr goldman arrived later and  in in your brief early on probably within the st couple of paragraphs you make or you you make an alternate request for a limited remit on one issue and that would be whether there was a request for counsel correct is that what are we going to call a concession a last option a compromise what should we call them an alternative argument was not rebutted by the police report or by the taliban of circumstances and if it was not waived by defendants plead that alternatively it should remanded for a limited purpose so no it is certainly not a concession we do not believe that a rd stage sharing is necessary or or furball in this case but if it in this court determines it should be for limited purpose which of course this court can do you indicated to justice perhaps that while you may not have argued independently concerning waiver by representing you were adapting judge rossetti's order which is extensive and quite thorough that you were arguing that issue if waiver more than just say just judge or is that he said and i don't need to repeat it you know generally it's my position to go beyond what the decisions of already been made  but of course if for whatever reason this court were to find that not less go ahead i don't know who that was not sorry if for whatever reason this court were to find and i did not raise it sufficiently obviously the case law is well documented that that this court can find a waiver or not you have one comment you did not and i appreciate your candor acknowledging that you did not argue waiver at all but can we use a waiver argument to affirm on any basis very briefly i do want to make something clear i did not represent that i spoke personally to goldman and he refused i just want to make it clear what the council stated i don't he doesn't doubt that i don't johnson talk to goldman he refused that is not the case but as i said earlier attempts were made to obtain an appetite f and even from goldman by our office secondly just in regard to this about securi affidavits i think counsel suggested that we could get at least affidavit from police officers saying they would testify consistently with their police report ice respectfully disagree that it's not been my experience ever obtaining any kind of cooperation and i'm not casting i'm not saying this in a hostile way but i have not received cooperation and p c from police officers speaking to us in regard to jennifer baines i will represent that i personally contacted mr baines tried to contact her and get her affidavit that personally i did tried repeatedly she is out now i believe of prison and were this to go to evidentiary hearing i agree with counsel that would be relevant information tried to obtain and lastly counsel stated there was a lot more evidence i disagree with that i agree with this court's initial ruling that there was not a lot more in this court's opinion they talked about how the statement your honour's the court talked about how there was not much of any additional evidence with regard to mr gaines that trial transcript which i foresee you don't have before me i don't believe whatever is represented in there is a guarantee that she would have cooperated fully and implicated mr jones not only that mr jones defense would not be i was not there i had nothing to do with this benefit if you do something or don't do something you get a benefit here i understand there may be strategy with entering a plea and not going to trial risking injury tracks or whatever but i don't understand what possible benefit there is when you have a circumstances i don't see the strategy in not filing a motion to suppress unless there was something in the record that the prosecutor said if you make me go through a motion to suppress that i'm going to ask for more time i don't see here how there is any possible way to infer that a benefit there in time for history jones mr jones with mr jones who had been arrested the day before and was precluded from speaking with him i believe that under these circumstances it makes it can be inferred from the record that mr jones requested an attorney and it looks at physical evidence and the court may look at any testamentary evidence including a confession in your experience if you had to rank these  types of accidents what would be what would be the most important testimony versus a confession yes a confession because the defendant one would confess if they didn't do it ok but you don't dispute that there were there were apparently witnesses who saw them get into miss baynes car and that's how they ultimately found them because that car was identified by those witnesses and they were still all together when this happened correct beans and jones were together yes yes ok i don't have any other questions and do either of my colleagues have questions based upon my limited thank you all right counsel thank you for your arguments this morning we do appreciate your time and your effort we will take this matter under advisement and we will issue a decision in due course at this time mr kaplan you may