excuse me to go to trial instead of pleading guilty that decision was wrong because whether andersen pleaded guilty or went to trial he did not have a successful double jeopardy claim that he could have raised the double jeopardy issue in this case turns out their failure t yield an intersection is a lesser included offense of driving under the influence causing death the nevada supreme court addressed this exact issue on direct appeal applying the black burger test held that failure to yield was not a lesser included offense of driving under the influence causing death because each offense included an element that the other did not the nevada supreme court's interpretation of these two offenses is binding and federal courts importantly the federal district court in this case didn't disagree with and about a supreme court's decision on direct appeal it actually found that it was reasonable but it held that because the nevada supreme court viewed the offenses at the time anderson pleaded guilty and said it's going to trial it didn't really answer the question before the court but that decision was wrong for two main reasons st ignores the context of an asprin court's decision on direct appeal and nd it relies on overruled case law and discredited legal theories specifically looked at the two offenses as the offense of driving under the influence causing death had been charged and in that charging document it specifically stated the anderson was guilty of driving under the influence causing death because among other things he did not stop at the intersection and did not yield to him on coming traffic that is exactly the way the nevada supreme court framed it this is what they said they considered whether double jeopardy protections barred a subsequent prosecution for felony driving under the influence causing de because as charged in the criminal information the misdemeanors a lesser included offense of the felony and under state and federal law when defendant pleads guilty he pleads guilty to the charge as it's alleged in the charging document which as was the context in which it was considering there's a whole lot twist on this case though because the trial court said if you don't if you're relying on this at trial i'm going to dismiss the case based on double jeopardy regardless of what the nevada supreme court eventually if the state to proceed to trial and just relied on that and the trial court had followed up on its promise to dismiss dismissal why why isn't that justification for going to trial for talking about advice of the of the attorney at the time well correct well the district court statement was wrong as a matter of law but if he is the district court where the trial court had dismissed the case you could were better so i guess the question is how does that fit into the an effective assistance of counsel claim right so the ineffective assistance of counsel claim is going to turn on deficient performance and prejudice deficient performance here would be whether an objective only reasonable  advising andersen correctly what would that advice ben and here that advice would have been plead guilty take this benefit don't go to trial because you could not be don't play guilty this case is going to be dismissed on double jeopardy grounds because ultimately it wouldn't a been dismissed the state disregards decision was wrong if you look at it it specifically relies on illinois vs vitale and a one sentence from illinois versus a tell it talks about double jeopardy claim being a substantial double jeopardy claim if the state goes to trial and begins to put on evidence to support one of the charges where the defendant has already been convicted of the lesser charge but i don't understand that's the only basis upon which the information rested that exact issue and found that they weren't the same offense it found that even though the state had charged him with failing to yield at the intersection when he'd already pleaded guilty to feeling the yield of an intersection those two fences were not the same under blocker and that determination on the elements is binding on this score and it was on the federal district court below so fear is not a double jeopardy issue in this case the only way you get around the nevada supreme court's decision and direct appeal is if you rely on this one sentence from vitale which has been expressly overruled in justice scalia's decision paragraph four which was drawn by a majority of the justices in dickson he talks about that one sentence and specifically states that it was never intended to be a holding and that to the  your honor i also wonder briefly mention the decision in harris which is what the federal district court a lot upon but the only way you get to harris is through tell because the investment court conducted that exact analysis as a matter of fact in the petition for rehearing filed by counsel in this case rehearing of that of aspirin court's decision on direct appeal he specifically said your honour's as to the extent and i'm paraphrasing obviously but if you think i had to wait and take this to trial i didn't because  locked the state into a theory i had him plead guilty specifically to that theory and at the preliminary hearing i made the state prove that the only difference in this case is that the state district court's decision said that's not enough the state has to go to trial and put on evidence of the greater charge or excuse me of the lesser charge and once the state does that once the state puts on evidence and presents its case these two offenses will become the same offense and that is explicitly the same it's not the same offense double jeopardy doesn't come into play there right that's correct your thought if that's true then the claim here is ineffective assistance right yes so if there's no disagrees of the master in court says that they are the same offense because he pled guilty and thirty year old was a lesser included offense well then counsel was ineffective because counsel made that exact arguments than about a supreme court he mentioned block burger he listed the elements of the two offenses and he said you prosecute him twice for the same offense that was counsel's argument but the so because a can't be an effective in this case because he specifically preserved the issue got a good deal for his client and then raise the issue on appeal to the master in court preserving that issue in the guilty plea agreement itself so if there are the same offense think counsel was not deficient in the way he handled this issue thank you other than failure to stop then the dui case would be dismissed as violating double jeopardy no reasonable attorney would have advised their client to plead guilty under these circumstances and erred by advising andersen to plead guilty rather than go to trial mr anderson was prejudiced by his attorneys deficient performance because his double jeopardy defense had a high likelihood of success at trial and the district court's decision correct in finding that andersen received ineffective assistance of counsel i would like to address a couple of the attorney on the attorney gave the advice in this case it seems to me the attorney was saying look if you plead guilty to the indictment which relies on the failure to yield it's still preserve the issue correct that may have been what the attorney was thinking in however it contravened the direct language of the trial court which said acknowledging th state always has the opportunity to try to amend the information or criminal complaint sometimes even during trial well we have to wait and see what the state's theory is actually going to be at trial the dui statute allows for numerous predicate driving both reasons why the motion was premature the trial court didn't say no under block burker there's there's no way this could meet double jeopardy but it was simply premature the jury hadn't been seated and the state had not definitively set forth which predicate driving offense they were going to rely on there were very strong indications that they were going to rely on failure to stop they still maintain that that was the sole cause for the accident never the less following case law of this court of the u s supreme court they had to wait to see what actually was going to happen at trial and the court could not have been more clear the trial court said in all capital letters if this is what the state argues it trial then this case will be dismissed actually the court went a step further in its conclusion and said essentially to the state if you know this is the only theory you have to go on a trial you should go ahead and dismiss this case nevertheless in what was an unreasonable piece of advice attorney kuhn advised mr anderson to plead guilty even though the double jeopardy claim was not right at that time so the state's theory is as i understand it the double jeopardy serial was flawed from the beginning and the nevada supreme court confirmed that and it was decided on the merits not on a default so there's no prejudice how do you respond to that my response is two fold one the standard for ineffective assistance of counsel is whether or not the double jeopardy defense had a likelihood of success at trial not on the state's appeal to the nevada supreme court and it's clear from the trial court's order that there was a high likelihood of success at trial nd this court is not bound by the nevada supreme court's decision on the direct appeal as so that's why it's wrong as the u s supreme court stated in missouri versus hunter and i'm quoting we are not bound by the missouri supreme court's legal conclusion that  statutes violate the double jeopardy clause true but tell me why you think that about a spanking is wrong absolutely your honor the reason is because looking at harris looking at wayland looking at they tally looking at this court's decision in davenport when there are numerous possible predicate offenses that can satisfy an element of the larger offense the court have to look at which of those predicate offenses is actually set forth by the state so a good comparison is felony murder there are numerous felonies that can satisfy the felony elements of felony murder and if the defendant has already been convicted of the one that is being relied on by the state at trial then double jeopardy attaches that's exactly what we have here there are numerous predicate driving offenses that theoretically could satisfy the violation of driving law for the nevada's dui statute so we have to look at which driving offense the state was actually going to argue at be you know incompetent representation he's making you would make your fame argument you just made a united meaning you're incompetent no i'm not your honor and the reason is because the trial court's order made it very clear that this may very the norm right because you say the state courts are probably wrong well i don't think this nevada supreme court was wrong well let me rephrase that  supreme court should have dismissed this case on direct appeal because it was premature not because the predicate driving offense was not a lesser included offense it was a lesser included offense but jabal jeopardy had an attached because the trial hadn't started because that argument had not been presented in court with an impaneled jury as far as the reasonableness of counsel's actions i would refer this court to its own holding in excuse me in willcox where this court was addressing similarly an attorney who made a premature double jeopardy claim during the st indictment failed to make the claim at the appropriate time during the nd indictment and this court specifically found that the error and prejudice were obvious and meritorious because the double jeopardy claim was not raised at the proper time and that's what we have here counsel was correct in making the double jeopardy argument but he made it prematurely and would you agree th jeopardy attached after he pled guilty your honor my understanding of the case law on this wasn't part of the briefing is that there is been a split among the circuits about how double jeopardy attaches during a guilty plea scenario so i think that's a little bit up in the air because again the state has continued to argue our circuits say about it i think this circuit has found that there are times when it does attached during guilty plea but there is that caution because this is a unique double jeopardy claim where it's not just looking at the strict language of the statute but looking for that it dition all what was the predicate offense and the state has maintained that they have never had reason to alter the language in the information particularly in light of the guilty plea that they would have had that opportunity at trial although again all the evidence suggests this was the only  could have relied on hence the high likelihood of success at trial following the following the theory that double jeopardy could have cash on a plea of guilty and your argument that if i was counsel in the district court i may very well have john that mr anderson was actually pro se in the district court he filed his own petition and nobody amended that petition he never had counsel to assist him in amending that petition at all in the district or at all in the district court similarly on his post conviction proceeding well he was an asset in the me ask a question from a different angle that you think that's a viable claim no word that competent would assert to commit your honor it's hard for me to say whether or not it's a competent claim because i have not looked heavily into this court's decision regarding double jeopardy claims on direct appeal particularly when you're dealing with the issue of multiple possible predicate offenses as a safety measure if i was counsel a district court i probably would have raised it both ways i believe in belt and suspenders but i think here the district court was very clear in its finding that based on the language of the trial court order very clearly stating that the double jeopardy claim at this point is premature that any reasonable counsel any reasonable counsel would have gone to trial and raised this claim mr anderson did  huge benefit from his guilty plea the district court recognized the two cases that were thrown out one called for a suspended sentence one was a misdemeanor where is based on pleading guilty he received the maximum sentence allowed by law on the dui offense therefore there is no f determined the double jeopardy issue so it's not when the jury's impaneled for the purposes of a guilty plea at the time the district accepts the plea and again i want to just reiterate that the trial court's decision in this case was wrong and so the issue isn't whether council should have done something that the trial court would have granted that only would have ended up losing on appeal it's whether a reasonable attorney giving objective lee reasonable bice which would be correct advice what they would of advise andersen to do and here it be to plead