defendant's fundamental right to decide how to plead and because this right was not protected for mr higgins we asked this court to grant him a new trial i'm usually in this case trial judge knew before trial that defense counsel intended to conceive the delivery but there is no evidence that mr higgins knew the consequences of the strategy at the time mr higgins testified  admitted that he sold the drugs to his friend he had not been charged with delivery of heroin there is no evidence that his attorney told him that he could be convicted of delivery of heroin and in fact defense counsel in opening conceded the delivery but argued that mr higgins had to be armed at the time of the sale for the jury to find him guilty the first indication from mr higginson the record that he was on trial for delivery of heroin was after he testified when his attorney agreed that the jury should be instructed on the delivery of heroin although the facts in this case  nevertheless this case fits in a line of cases and the only law supporting the notion that because a defendant has a right to decide how to plead the trial court should admonish the defendant wheat and the maximum and minimal minimum penalty he's facing people versus medina held back because tendering a lesser included instruction is similar to  right that's true in this case so we're saying that although the although the facts some are case are hobbit then a call to this to the to this line of cases nevertheless there's a similarity between our case and this line of cases which is that in this line of cases the court is interested in protecting a defendant's right to decide how to thievin to make a knowing decision and how to plea lesser included instruction a similar to a guilty plea the court must enquire to be sure the defendant knew the potential penalty is associated with a lesser included offense and might you know also cites a case people the evidence against him was overwhelming so he didn't need to be admonished we still think that that because the defendant had a right to make that and knowing involuntary decision about how to leave he should have been a but i can give you some citations of recent cases that that's a no the supreme court cases interpreting the supreme court cases would you like those potential penalties associated with the strategy and then second the second step is the court should also then directly ask the defendant whether the defendant agrees with the strategy issue one and the first is that the record shows that defense counsel did talk to defendant about the lesser included offense the state tendered the record shows the state kind of the lesser included offense instruction defense counsel  affirmed that instinct was tender and hence when the judge asked if defense counsel had talked to his a client about it and he affirmed that he had so there's no reason to speculate that defendant was somehow blindsided by this trial strategy or the record shows the part of the tendering the lesser included offense instruction and the reason for that is in that circumstances when the state's not offering instruction and the defendant's exposing himself to criminal liability that he might otherwise avoid on the lesser included offense well quitting on the green or offense under the evidence presented and that's undeniably the case here so the trial goes would've had no reason not to give instruction tom cases discussing garcia mention how to find there has no right to block the stink from from the instruction  counsel have you discussed this with your client that's counsel says yes that even under my demand that would not be a sufficient inquiry because i can now even if it was an effect of strategy if it was it was his right to decide how to plead and it is not clear that he would that he knew that he was even on trial well so we're saying that in this case the judge needed to and mohnish him at the point that the judge knew what the strategy wise and knew that the strategy was to concede this  offense i'm so so that if from the defendant's perspective he it's consistent with the record that he didn't know that he was charged with th again thinking about medina although it so this case is different from and you know because medina is about the the jury instructions at the end in this case waiting till the end to get the jury instructions would be too late you would be the first part to say that but it fits with the reasoning of this this line of cases that is interested in preserving a defendant's right to decide how to ea