necessary to the pro se petition to present the defendant's claims now we agree here the core repeatedly emphasized that the defendant petition act haste had gone to the second stage of post conviction proceedings without the trial court taking any action on seven because of some sort of evidence that counsel has his eye covered that would completely and entirely negate the arguments that the issue made in that situation perhaps a motion with was appropriate  in did not address the issues that were raised that there were several issues the council failed to address in the motion withdrawn their work they in that case because the facts are different than here then he did not allow that motion withdrawn post conviction setting files a motion withdraw in this circumstance and what council has spoken to this is why didn't the state mo withdraw the mandate we didn't have a second psychological evaluation by dr zuma at that time and also it would have been a waste of judicial resources to at that time again appeal the r to dismiss these additional second stage would have been on appeal so in those that would be the reasons why we didn't having a motion to withdraw the mandate at that time or even of another appeal late t that in the prior appeal the score twenty min affected says this was based on defendant's inability to control his actions and this court found that this could have affected the defendant told the police and his ability to understand the consequences of doing so for the second evaluation the doctors who reviewed the d v d or the police interview she noted in particular the defendant responded appropriately to questions and he did not appear confused provide the d v d of the interview to this court in the first field he has not provided the d v d of the interview for this appeal and this court did not have the information the defendant could not even remember the interview and for prior to the appeared to be in any way under the influence of it but isn't the argument not that he would have been noticeably under the influence of just being i think doctors who talked about  functional but that he would lack the ability to control his actions that would be it would be done in mounting every effort the medication or this influence but be you know th medication has that effect on you such that it would render it legally impossible for him to make these statements voluntarily and my concern is that if you don't  for the purposes of putting this petition in it's proper for look at two thousand and one and and the things that are the record from from that and include those in the petition that you're really leaving out of the whole argument which is you know the confession and everything that needs to be surprised because i wasn't able to hear the voluntary way because it was on the d v d and he could not remember the interview shelf there's no way she could make an assessment of the room the way that was that was that but she also said in her report using some of the information in the two thousand report in those long paragraphs she also mentioned that she had no medical records showing what kind of psychotropic medications dependent had been on prior to his confession so there was no way to determine if  psychotropic medication at the time or at what levels she also mentioned that he had been intoxicated at the time of the crime but the confession was fourteen hours later in that the alcohol would not have that any effect on him by that time so i believe that the report relates to of your concerns accurate of course is that counsel is the duty is to amend the petition but again the cuter court allowed specifically most recently that in most situations like this where there is a judicial determination it's already been made the counsel ineffective because there's no way to prove that in any way and he also pointed out that at the time of the guilty plea defendant did not ask his counsel withdraw the plea or any did not state whatsoever so i believe that was the ethical issue for the council because he could not substantiate claim in any way shape or form even though he could put it in a little legal language and you can take any when you put it in the legal two thousand and one this is nine years later so she's got this history with this gentleman she already knows and she can determine how he appeared at that time only in from her own personal observations and interactions with him in her evaluations so she has firsthand knowledge of this gentleman's demeanor he's psychiatric health in such so she did it both at the time there was of course a fitness hearing before trial then we also have this this second evaluation later she's trying to determine later of course the primary focus unfortunately it kills lester to do the miranda warnings which is an important factor that question if you can or cannot an indication all of those different ways depending on the presentation of the of the defendant some some case law which we didn't cite in this particular case did those indicate that a person on psychotropic drugs is not necessarily incompetent or unable to zero to waive rights or to confess and there's other case law depending on the facts of the situation goes yasi is just it's very fact  believe the judge made that decision when he rented the motion withdrawal based on councils of statements in the in the it's a fairly lengthy motion which are all fairly comprehensive i believe in terms of his reasoning for why he  market she did not deny he defended the opportunity to to correct her decision so to speak through further argument personally it with defendant had more to offer that the judge didn't consider through their motion to withdraw than defendant certainly any claim that counsel should have done a motion to suppress were there is no evidence whatsoever to be to be able to support that there would have been successful or that that wasn't of a matter of trial shreds you now have to do the motion where the council had the ritual trial guilty plea counsel had the d v d and had all the information and so that would have been a matter strategy is to whether or not to file that in everything we see here in this particular case doesn't go against that initial decision as far as i can determine based on girl horses different format where the that was an automatic move is that instantly we get the cuter than that addresses the situation where there's a judicial determination in both cases they allow motions to withdraw in the second so i don't think there's any conflation of of the duties is just a matter of one skill to get there gets there any fines i have got nothing i can do for this this edition i have nothing that i can add to it i improper motion to withdraw and for that reason they reversed we don't have that issue here because with rest all the issues that were raised in independence edition including for instance he said he wasn't allowed to be at certain hearings in kelso reviewed it and found that there were no hearings on those dates and other things of his his the time the hundred twenty days it passed well he looked at the record found th the judge been throwing in offering the defendant the opportunity to present his claims without now perhaps some was not of the determination of the issues for us at that time perhaps i may be misstated the implication of that and that would be why then the judge would have allowed defendant to continue to argue this petition i meets at my bench i'm sorry but there was a list in that evaluation of all the riches that she reviewed and also there was a list in the second evaluation of of the materials that she reviewed into the course you know the narrative that you put into both evaluations of what the history needs in in the presentations such saw the first thing to point out here is that there's no reason for this war to vacate its two thousand and i just says it state hasn't provided one and there's no basis in the law for the two thousand and ninety seven is what it is and it said it is petition was not frivolous and it was not yet without merit so this is starting point for our evaluation here it issues not frivolous and it's not happening without merit what follows from that and all three of your honors have have put your fingers on what i think the issue is in determination by this court that this is not a frivolous petition we have a two thousand and one report that this myriad psychological psychiatric problems in the case of this guy's taking a number of different your hypothetical situation in which whatever whether it was a fast rule development or changing the law or eight witness changing way he or she might say and council could could