third stage denial of his petition for post conviction relief he alleged in his petition that his plea attorney ineffective for failing to correct your information and his pre sentence report which set forth a georgia can actually to georgia convictions as felonies when in fact they were misdemeanors but it just is a general matter the trial court did not f not be here when it's at some other place some other time infected a different state how does the defense attorney determine it other than showing you to his client against you trying this information rickard well that i think goes to the competing a argued this the defendant said that prior to the sentencing hearing he had gone over his criminal history with his attorney and that his attorney was aware of the nature of the criminal history that he was aware of the nature a motion to reconsider because of this mistake that was made a pro se motion just well i suppose possibly but i think there's a couple issues in this case which explain away why it happened first of all the judge way after he pled guilty and was sentenced the judge told this defendant if you have any problems with this you have to file a motion to make it your which was accurate because it was a sentencing kill but this isn't that the defendant in this case has never tried to say that his plea was involuntary what he's saying is when the judge came to the decision i want my sentence should be within a cat he didn't have accurate information so i think those admonitions first of all could have been misleading to him because he didn't understand that he even could do a motion to reconsider secondly this defendant is actually the one who went out ultimately and kept the information from the georgia court and presented it with this post conviction petition there was no other evidence anywhere of record they had indicated that this information was inaccurate so we actually went out and got it again the information which in fact i think showed that the charges themselves even more not originally felonies that the charges were misdemeanors and the state misdemeanor saying i don't agree to enter this plea he's saying the procedure which was used to come to a conclusion was inappropriate was an inaccurate i was denied a fair sentencing hearing and the three cases that i and say you know that information was an inaccurate and i think you need to bring that up make sure the judge has it your information did the attorney say i don't remember there or we have to prove it to me we don't know why that wasn't followed up on but that nobody ever required him in the course of this post conviction proceeding to make that allegation and explain it so i think there's some serious forfeiture issues there ha actual sentencing judge did not hear this post convention petition he sent it to another judge who was then trying to believe what the original sentencing judge would have done with it which knowledge what when the judge had assigned to it so i'm looking at the transcript every party to the of the transcript he did look at the transcript which in fact is what i'm looking at which i think does show that the judge did not put in about in fact gave the fan in a fair amount of credit for substantial mitigating factors he said it looks like till you've gotten to a large degree you've gotten control over your life the woman who was one of the victims had in fact married the defendant had a child with him had a stable relationship with him he gave him credit for that he talked about the fact this defendant since his extradition had been a m prisoner in jail had been teaching other prisoners to speak english had even you know while he was out had gotten taking computer tech classes and actually had run a successful i am considering your private criminal history any mention two things and he said you've got this prior eleanor felling disposition and since this child you've had a felony disposition into your job and those are the only two things you mentioned so he's got a lot of mitigating evidence saying seems like he really rehabilitated yourself except for the fact that you've got now a felony disposition in georgia so holds any sense of below the pale sensible of the cap but that doesn't mean that when he specifically says i am taking into account these felonies in georgia as an error baiting factor write to me along with all the mitigating factor he considered shows that that was considered it in was rosario and sallis which actually was ironically the last serious offense she had superficial injuries she was treated and released she i can't believe it i can't recall if she actually testified or in her statement said she has not suffered any lasting impacts from them and the other victim alleged victim it was now his wife and came in and presented testimony  said that he really changed and he was now responsible so yes the judge did consider the nature of the offense but this was this particular fence was actually the least serious of the ones that he pled guilty to in terms of the charges that were brought the other argument that the state has made is there the defendant should have spoken up himself at the time of the sentencing hearing i i would say first of all he he was represented by counsel he doesn't have a right to both represent himself and to speak up on his own but i think it's important to point out with respect to cases that for example these people because the pot which i have cited in my brief that was a case where the judge when she sensed the defendant in a homicide case it was pretty much just an argument on the street in that case and the judge said one sentence in the defendant i'm aggravated in your sentence because you're a gay member and this was going motivated well neither of those facts were correct the defendant was no longer a member there was no gay motivation nobody spoke up at the time of sentencing to correct the judge and they act in their inaccuracy and the appellate court said we're treating this as plain error because it effects the fundamental got eleven year sentence and tried to raise both an argument that the eleven year excessive and that the judge considered improper hearsay your honor said you can't make the claim of the sentence is excessive however you can make a claim that th we're talking about georgia is about and that indicates it refutes the affidavit of the petitioner and when he says that i'm talks about my torture convictions my prior criminal history with my attorney know what in fact these convictions were because the department of corrections a probation officer who actually drafted p s i was the person who had the resources to go investigate this and they obviously got it wrong but that and  in those cases that say anything about you have to do this even when there was false information or incorrect information presented to the trial court judge so therefore you're applying a full or par i see said it again finally in a couple other minor cases we understand mass and it does seem that this line of cases of the past and appellate court looking into six so forty and see that there is an exception for improper bring forward that it's to correct the record especially where it made have been tiriel in the action in a sense you have a great deal to give give you become aware of information that is going to reduce the defendant's punishment you have an obligation to bring him forward and correct it whether it's within thirty days of the trial for ten years from the date of the trial if this a original sentencing hearing somehow contradicts the defendant's affidavit in fact the only one after the original sentencing hearing made reference to the fact that georgia convictions or thought these georgia convictions  what that item in georgia is that we're talking about but to be honest you know the offense was manufacturing false identification document i had sure what that offense means easer i don't think there contradicts the defendant that mr bashir was aware that they were not in fact felonies with respect to the day of sentencing i don't see any indication in the record that the judge was saying mr tapi if you had a chance to the judge said at the outset of the hearing have both sides and never to need to review the pre sentence report both attorney said yes we have again that does not dispute the defendant's allegation that he only had a few minutes he didn't have a chance to review everything and then and that only criminal history that this judge mentioned once you got a prior felony you know on the right and then you had a subsequent felony in georgia so when in terms of the aggravating factors other than the offense he relied on to felonies  witnesses or whatever other evidence to actually demonstrate given the sentence that was given here to demonstrate the question why and i am saying is that it's clear from judge phillips comments that he considered a significant factor in your aggravation and said i am considering an aggravation these two felonies so i am not saying it's a possibility i'm saying that the record reflects that he considered again accurate information  look i think that's just accounting says application that if the judge thinks he he's being sentenced for a felony and he's committed a felony i think it's a commonsense understanding that a felony in forging documents subsidy but he didn't even talk about the nature of the offense he talked about the status of the offense the felonies so i don't think you can say that it was the nature of the fence which had a bearing on the decision it was a