good morning your honor it's my name is william for over again i represent mr say how proud of on appeal to this court if it's agreeable i'd like to reserve two minutes of my time for a bubble this know my attorneys that are you satisfied with his performance well i want you to you know he says to the judge there was this one hundred twenty month offer he said he was going to come back to the jail he didn't come back to the jail the judge  follow up questions that's the backdrop of this mistake in the plea agreement yes the plea agreement the modification with subject roll leavened my client came to court there's the mistakes or is this really what you wanted to do what would have been revealed to him was that mistake he was already having questions about whether his counsel you know this thing with one hundred twenty month off or rejecting it when not using and not involving the defendant on the modification of this agreement hides that mistake from the defendant and it robs him of the chance to potentially move to withdraw his plea seek new counsel  after everything is complete where the standard is much higher on appeal or anywhere else and so that's why i think it's important  counsel an error and that's something different would have happened i think the client would have taken one hundred twenty months i'm sorry i'm getting ahead of myself and i thank very much away from your question  here i think my client came and i think he said to the only person that he thought had the power to help with this attorney client relationship look this is what's happened and he didn't bring this offer back to me  crying out for a little health and we know from the records that this person has a fourth grade education we know that they have no experience with the criminal justice system and  guilty now or you go at once thirty this afternoon and i was standing notwithstanding the other answers the judge canners questions judge tanner asked questions but if the answers if the answers suggested that he two i agree with the court that i think that the matter of in fact that this is a council really has to wait for twenty three fifty five because it's the record below is just so scanty on it that it's almost nonexistent it may be there but we don't know what it is and we can't really address that intelligent today here the real issue i think here is the question of the stipulation i agree that it would have been far better had the defendant on the record with the judge  because i was just reviewing the order i found in my packet and i in reviewing it and i don't know a lot of public work but the way i interpreted it i thought that that was a non issue on appeal here today so frankly i didn't do anything with it i see you a chance to fight on the issue of the stipulation it was not the best way to do it we should have gone over with the trial judge and nobody thought of it and  certain reservations and that's because he knows what he's going it's up into the first of a prison term but faced with the choice of pleading or trial he made his choice he made he made that very clearly there are a lot of questions asked by the trial judge about what about this what about that he got very strange answers where the defender keeps trying to divert off in this direction in that direction and with it just kept bringing him back she was do you want to plead guilty do you not want to plead guilty because if you don't you have a trial when faced with that choice to defend him in a very i'm happy to stand in my pleadings unless you have more questions i will give you the few minutes you have used thank you your honor first of all there is not a motion pending on that age issue however i would request leave from this panel to make that motion orally right officers of the court in front of them would have said is that true you know perhaps the defense attorney wouldn't know answered but actually he could have inquired into it and i think could have i think that is a better way to do it because  on that issue then what happens it goes back and it gets that he gets a trial and a question whether replete again now he gets he gets a chance to have it i mean for attorney client relationship and if that includes the his innocence process a through many state and federal proceedings and there i think that this court has raised some issues that is asked for briefing on that we've briefed on and i want to get to them i think what's important for this court to consider is the threshold issues on the waiver of the right to appeal question is what actually transpired what were the issues that led to the to the waiver of a fuel that's one of the critical issues that i think has not been fully addressed by the state court or the district court in particular i brought this court's attention to the issue that mr sanders raised cross a regarding how he termed it prosecutor and there's a few other terms of art that he use which we may not have chosen but i think the argument that he was trying to make and that is appropriate for this court to consider is whether or not  question the timing and which the offer of the waiver appeal came about and the underlying criminal charges that the prosecutor claimed that they were she was going to bring against him when they happened i think that that's critically factually because if i thought of this court's attention to the fact that the alleged witness tampering occurred in a pretrial hearing not during the trial and also the issue of the perjury the question of what you said on the stand well it during the trial that if you're looking at the facets really you know actually it could have taken many ways but whether or not there 's actually a perjury charge there i vehemently disagree with i have a question for you this little outside of my experience and i don't have a many years of it but the first case i've seen where there's a plea bargain sentence sort of i give you give up your right to appeal will make such and such a recommendation is there any is there a general is very case squarely in point on whether that's permissible went to the point of agreeing that there were were there was the right away and i think there's a washington state court stately suite i think that was cited in the briefing from member directly on the fact that the washington state courts have certainly given the right to weigh the right to appeal which brings us to an interesting issue and as i would say it is ok you go through a trial you have a very your innocence and i think the briefing talked about this and you get found guilty and there is arguably as we've argue here that they're leading to this finding of guilt was ineffective assistance of counsel which is then gets into another complex issue but the thing that i'm troubled by that i don't really know the answer to quite honestly is  level of knowledge for example what level of knowledge in us comes into an issue of the waiver of a right to appeal looking at a plea bargain before trial you know the individual has supposedly all the information before him or her to make an informed decision and has a period of time and can look at it with at least some hopefully dispassion with assistance of counsel this is much less structured i mean it's like give up your right to feel we're going to throw the book at you right then and like my question of which i don't know if you were answer directly is this i know that there are cases thinking that a person can give up their rights can waive their right to appeal are there any cases saying that they can waive their right to appeal in exchange for a bargain that the prosecutor will recommend a low  range where the prosecutor will not make other charges against him i believe there must be but i can't answer that question at this moment there are the following i don't think this is your fault it's just the have to make an ineffective assistance claim if you're arguing that the voluntariness element of a waiver as been violated by the circumstances of the trial level at least  giving one way to get there you may have others out so well that's that the difficulty with the case in the sense of trying to argue it is because there's various ways to get there and one of the ways to get there is which i said had been addressed at the various court was the issue of your relationship with the defendant with the prosecutor and exactly how this particular sequence of events came about that he would ended up taking the waiver and i mean to have a prosecutor minute whether due process precludes any bargain at sentencing that requires a defendant to give up an appeal in exchange for a low that they're convicted after agreeing that does that mean if you can't punish someone for taking an appeal then you can't threaten the punish them if they don't waive their it seems to me that's kind of the gist of th prosecutor doesn't reasonably in that is saying we're going to purge the maximum consequences for you for everything you've done that's wrong if you don't believe your appeal you know impropriety on behalf of the prosecutor of overreaching but just that we're looking at someone who said i'm innocent i'm going to trial they get convicted how they get there is one of the arguments that we've may have been in when we think an ordinary federal case we have a waiver of the of his pro se litigation by name is appropriate to this situation i think it's pretty good argument it's a little it's you know the one correct appeal and i would think it say that the principle is clearly established under supreme court precedent when we're playing the principle i'm slightly different context i think if there was a situation in north carolina pierce was only used in like a couple of situations a couple of supreme court cases maybe one maybe two for say that would be big that would be arguable but because north carolina  there's a different issue which is can the state require the accused to give up the right that they have granted in consideration of not being punished in some way and i have to sort of characterizing  against the state's position but i'm very much troubled by this case if it were under direct appeal i would apply in a straight line of the peers and i could be wrong but i would think it would be a fair analogy here i don't i'm not sure are i used to be a deputy prosecuting attorney i will tell you that it is not a regular practice i have seen it done but i cannot say that it's done in every case or even on a regular fashion i think you know here  practice and i'm not buying the argument that the particular prosecutor here was vindictive or you know anything like that i just wonder if this is a practice that's precluded by due process i don't believe it's a practice quickly but the process but i think it's important to remember here are there's a look at the entire scenario here there's been several questions from the bench mr karr just made certain comments regarding mr sanders being threatened  this was an agreement there was another party to this agreement that the state what was the state giving up there's been much talk about the friends i would respect which meant there was no threats the hard reality of the elements of those charges that he's making a deal giving up something to be freed and then there's an delineation of their elements or the maximum penalties for him it's just sort of in th indicates as i recall from his casting to mr sanders lang out specifically what the prosecutor's new charges might be as i recall mr gaffney included certain again through her letter which i did not have a copy of but she i believe she refers holes but the defendant given the nature of the bargain offered him says ok i thank you and i don't i don't know that that happened here but that strikes me as if this is a normal practice or permissible practice then danger and understanding fully the uncomfortable with the effect such a word from the bench about what the discomfort of the suspension with this process and again difficult i don't believe it's a general practice i have seen it happen but i have to emphasize to this court there was a really should have been convicted but it remains a choice your honor it remains a choice mr sanders could have told the prosecutor this was being done well as you say that this explains the discomfort whether it should be and i don't want to just roll blow by it and say i'm going to i'm going to ignore it but i'm not for now ok assume that we get past it and then the claim is completely gone exhausted if you look at mr sanders petition for a view he lists three claims says nothing about prohibiting him from filing collateral would preclude him from direct appeal but it wouldn't stop him from a state collateral proceeding or a federal a b s claim i think that would be factually correct but that doesn't seem like that could be what the i think that i don't agree with the court's contention but i understand where you're going at a certain point i would submit a person has to live with the consequences of their choices and again this court has with all due respect is viewing this issue in a very limited perhaps unbalanced fashion that mr sanders has have placed upon him this enormous burden that based on due process he should not have and i would respectfully you can tell the attorney general the judge schools that you should get the rest of the week off because this is like arguing three cases that we're all interested in different things going on telling unusual nature of this but here's my question is there any right to appeal by a defendant who has maintained his or her innocence you consideration of a low sentencing recommendation or a prosecutor specifically regarding or addressed pacifically the issue of a loan recommendation what it does state and i'm quoting accordingly if it is not if you process violation for a defendant to waive constitutional rights as part of a plea bargain statutory or constitutional state right to appeal when you make a plea bargain but that cases is that case one that does not involve a post trial later i don't recall i don't recall exactly where someone is giving up a certain rights for threats or punishments i do not believe there was a further issue in that case about the judge taking an active part of the  time is there a situation where there may be considered overreaching just do the procedural posture of the case and i think that's what the court is raising because of this sort of this point in the case of due process concerns given the fact that someone you know we talk about waiver we always talk about knowing intelligent voluntary in terms of plea agreements well in that situation i'm going to trial you at least you have an idea of what's what's out there that you can argue but you haven't had a adjudication on the merits but in this situation obviously there has been room to expand his recording to the order as i saw it and i thought because the issue of ineffective assistance of counsel at the trial level was so critical to where we are today that i did brief that issue and then i would ask the court to consider it if need be on it or a motion because  prejudice or actual innocence of the schlub standard or it can't i think that my client and i have to talk to them would prefer that this case go to an evidentiary hearing to determine on the merits whether there that the district court and that it could also consider have a natural hearing of the court reaches that issue but either way i would like to do that one last thing just choices that i think that it's clear that there