pre prior to the sentence maybe i'm oversimplifying here mr levin but doesn't this case come down to nothing more than a credibility determination by the calm common pleas court judge who did not believe mr heath in his collateral attack and credibility is a factual finding if your hon please my learned counsel for the commonwealth and myself have been discussing that numerous times over the telephone etc because we couldn't we couldn't decide why this court issue certificate of appeal ability because we thought it was a factual issue but i would beg to differ i believe that the reason that this court did issue a certificate of appeal delivery is because for some reason this court wanted brief the issue of whether the attorney was ineffective just just just were i was on the motions panel ok just for your interest the transcript was not available situation the attorney testified that the mr key did not want to withdraw his plea at that point so i figured there had to be some hidden rising on the panel issue that i ask this in question while i've come up with a no you look to the panel wasn't said there he goes again actually being there even if they don't do those kinds of things in massachusetts i have come up with the reason your honor  and i believe it's why this court asked us to look at the recent united states supreme court case and i know what our argument is on the half of mr key is that the attorney was ineffective for failing to withdraw the plea when the client asked her to do so even accepting everything that's in the transcripts of mr key said don't do it it's after her testimony is and i believe it's uncontroverted she said let's wait and i believe that that was ineffective on her part she knew that there were certain issues that had not been discussed with the defendant or the defense said that they had not been discussed force to the possible sense and i believe she was ineffective for saying wait and the reason i say that is because the standard in pennsylvania is much more liberal had had she withdrawn the  plea before sentencing and the question is why she didn't withdraw the plea before sentencing knowing these things that she learned right around the sentencing hearing that his sentence was going to be much higher and that's what i tried to tie in to the united states supreme court case laughter although the facts were entirely different i thought the reasoning that would apply to this case was was the attorney wrong in the decision she made in the prejudice would be and i think you know how have you shown prejudice here in this record ok because because the defendant asserted he was innocent and according to the american bar standards and in all other standards a withdraw of a guilty plea prior to send ships should be little it liberally granted and the defendant would have then proceeded to trial now she i believe in her testimony to the lower court she said that she told mr and what's interesting in this case is he never played guilty he pled nolo which indicated there must have been some day out sin his mind and the attorneys mind from the beginning as to whether he was actually innocent of these crimes i mean he was pleading nolo basically saying i'm just saying that the commonwealth could find me guilty of these crimes but it would appear that he didn't actually say that he was going that he was guilty of the crimes or he would have pled   that i believe ninety four ninety six percent of all cases both between state and federal court end up in guilty pleas and we've got to give a lot of consideration to what takes place during a guilty plea and whether an attorney is giving in effect advice and down the road who knows what's going to happen with guilty pleas but i think this is about mom isn't the problem and that's why i ask you how to show prejudice when you flip laughter around and you go to flip side of laughter don't necessarily because i mean i believe he was saying that he had witness a secret presented try me i understand that we don't know what would have happened had he gone to trial but i think one of the interesting things that  i don't know that i read when i was working on this is that if we look at the practical side of what happens i mean here he's been through all these evidentiary hearing he's had appeals to the superior court he's had appeals from the p c r a which  pennsylvania and the whole thing would have been a lot simpler and cleaner had his attorney withdrawn the plea at that point let him go to trial and that would be the end of it of course if he was guilty then we would go through the whole process again so i mean i i know what the transcript said and you have lived it be here or are you in laos right when you who are support right i see my time is almost up i probably would have written my well i would say no because i believe counsel knew at that point that his sentence was going to be a lot higher than she or he had originally thought thank you thank you controversy over there be a survivor of the prior offense which the sentencing judge obviously gave considerable weight to that's correct this this is the one for the the burglary etc charges typically happens is the probation department makes a recommendation as to what the sentence should be to the court and they did so in this one the court did not follow that recommendation or did not adopt that recommendation certainly then ended up getting an aggravated range sentence i do not believe that the trial counsel was the fish and i believe is actually good advice when presented with the new pre sentence reports and after reviewing that knowing that the trial judge may incorporate that none the the context of a discussion about the tense of which all the plea she reminded the appellant of the fact that if you did get to trial the burglary charge would be back on the table with obviously more severe sentencing ramtha cations with that so