good morning your honour's christa hart on behalf of sidney green representing the appellant my goal is to reserve three minutes for rebuttal in this case but in any criminal case a defendant has very few decisions that are solely within his purview two of them are whether to plead guilty and whether to appeal a case an attorney's duty is to ensure that the defendant's decision is well informed by providing them with the relevant legal analysis as it applies to the facts and that case counsel is not required to ensure that her client makes the best are even a good decision just that it's a well informed decision with all of the facts before him here mr green pleaded guilty to parents pursuant to a plea agreement  not effectively ensure that the plea itself and the waiver of the appeal rights and the collateral attack rights were knowing intelligent and voluntary and this stemmed from the moment that the district time there would be seven years of supervised release some and certainly heard more of them just time in prison oh certainly certainly but it did but if you're going to use the word sentence to encompass all of the supervised release the conditions either mandatory special or the optional fines penalties etc then when mr green signed that plea agreement and waived his right then technically according to the plea agreement you couldn't impose any conditions of supervised release could not you say i think a very already entered into which the district court rejected correct there's another plea agreement entered into which doesn't specify speech makes reference to condition makes reference to the supervised release and there are conditions to supervised release without saying anything about a number of hours of community service and the seven hundred hours was unusually large there was no modified plea agreement the district court tells the parties i'm not going to accept this one either but you know this is what i have in mind i'm having trouble understanding how that's worse than the alternative the district court simply exercising to thirty to impose conditions of supervised release because the district court conditioned acceptance on this and relayed that to counsel for counsel and gave your client a chance to say well that's not the deal i made in the same way that that  he's better off knowing that not knowing and being blindsided i think because that way here the opportunity to say well that's not my deal i'm pulling back and he could have pulled back and he didn't he formed his attorneys that that was not part of the deal but he didn't inform his attorney to withdraw his guilty plea here is the problem but it's kelli it's councils obligation to protect her client's rights that's not answering my question he told his attorneys but did you have your client seek to withdraw his guilty plea at that point knowing what the judge's intent was he did not speak to the court outside of his attorney's know that instructors attorney to withdraw the guilty plea he instructed he told his attorney to inform her client about what his rights and what his options are counsel can see if they say we didn't think we had a choice because they came from the court so once they went into chambers with the judge and the judge said here's this alex up this plea agreement but only on the condition that it includes seven hundred hours of community service counsel said we didn't have a choice they did we're going to get your clients your brief the attorney said this is our best shot to get the court to accept the plea agreement correct your client was being persuaded by his attorney that doesn't tell me your client didn't have the option of pulling back and saying best not the deal i made that's not the deal i'm going to make how and so i also said they didn't think they had the the legal ability to object the legal ability to move to withdraw so if they don't think that they have the legal ability to move to withdraw the guilty plea i'm not sure how mr green as opposed to on his own ignor the advice of two defense counsel that are sitting there with him and he's supposed to assert a right he's not even entirely sure he has and i'm not sure that we should impute on defendants the knowledge of the law and knowledge of what their rights are in this type of situation i thought the what happened was the defense counsel informed your client if you didn't believe the court was going to accept the plea agreement unless the seven hundred corporation in this way they said this is our best shot to get the hard to accept the plea agreement neither of my attorneys discussed any hard shows for me in relation to the seven hundred hours of community knows him he's doing his declaration he knows but he doesn't say if i had to do it all over again i'd withdraw my plea and go to trial he never says that you're the fact that he's fi twenty to fifty five motion saying he wants to set aside his plea agreement because of this error i think is evidence of that and  again i guess he you know you're i'm troubled by the idea that we have and i defendant who is sitting there in in the courtroom represented by to attorneys telling him what the law is we don't have any choice to do this the attorney said we don't have we didn't think there was anything we could do about this and then he is supposed to somehow know that he should get nor that and say to the court i have jacked i want to withdraw my plea and  please the court brian wilson on behalf of the government i think you all have a doing yes you here also want to step back and look at one big picture item think about what would have happened if you also had come out and said to mr green have seven hundred hours i think we ought to go to trial i think well that is something the fundamental problem is that according to distract the mission they didn't tell me anything about it and that it wasn't apparent they didn't tell him it was a possibility and they didn't give him  have gone to trial but that's not their only option is to say let's go to trial there are obligations of us to say this is a possibility and the judge wants to do this let's talk it's still your best option but if you don't quite get it and so on and so forth i think the counsel's affidavit did tell him this is our best option to get this plea done and this is a great deal i mean he's avoiding man fifteen year mandatory minimums life sentences all in exchange for what amounts to remember two hours per week of community service when he when he gets off on gets told to supervise release that's what this is seven hundred hours sounds a lot but it's two hours a week and hours a week for a long long time it is two hours a week for a long long time but life in the big house is a long time to do and that's well it wasn't like he was getting that i mean he had previously undergone agreement for what was ten years and now he's got an extra two years right and then he's being told oh by the way you got seven hundred extra hours that's a lot a lot it is a lot your honor but i contend it's still a good deal and i still would have taken it i don't think you can show prejudice while he's here now i mean what what suppose he's successful on this petition what happens well we go back and he's going to the choice of withdrawing the police and use seeing if i can renegotiate another plea deal that the court will accept well so in the fact he's he's now by this petition saying what he might not have said very explicitly before but seems to be indicating now he he's prepared to take his chances and you and send you up the big house for a long long time long time that's correct good they certainly could do that but our position is that you know in order to be successful on are twenty two fifty five they've got to show both deficient performance and prejudice and here that the councils we don't contain we can time the council's performance was not deficient just for the council to say look this is our best shot to take this two hours per week it's that's what you're paying the council to do is is to say well you know stay with us we have to do this to get the deal right should they also have said to him but you can forth suggests there is an alternative but what if he didn't but if he thought this is gee i'm now stuck i can't do anything about it and by this petition is suggesting if i could have done something about it i would've but he doesn't say that i know the petition suggests that but he had a chance to say in his affidavit that no one want to know i would've walked away if they had told me i could have and he didn't say that and i can't and what he's trying to really do here is just take the benefits of this very good polygram and just cherry pick off the seven hundred hours that he doesn't like and i don't think you can do that in this proceeding i think he's either waived his right to either collaterally attack or appeal and he's trying to use those twenty to fifty five as a way to just cherry pick off let me go to that a lot of point we have for sure dealing here with four uncertified issues in the two and four deal with the i she claims one and three get to the substance it is the government's position that we shouldn't be talking about one and three i contend that your honor i contend that either it's either not these issues are not covered by without talking about that the substance of what it was about on tape and i agree with that and it's it is difficult and it was difficult for me even briefing the thing because it is just one big package but i do think  that one thing that occurred here is all of this occurred right in front of the defendant this is not a what outcome or typical ineffective assistance where it was something that the defendant didn't even realize was going on until after he's already received descendants and and learns new facts or something like that i mean all of this happened right in front of the defense and no and i contend he knew he could have withdrawn the play he didn't even have to withdraw please remember he had  guilty before so all he had to do is when the judge said how do you plead not guilty or let's assume for a moment that we're going through and we're considering the i a c claim under strict and of course there are true prongs the first  up to show the performance of counsel was below the standard of the community what's the government's position on whether his counsel in this case failed to meet the community standard we contend he did not fail to meet the community standard because i think any reasonable counsel would have told him look you may not like this but this is still a good deal and i would suggest you take it back i just don't i think like i said th converse if we were here with the attorney saying don't take it and they all mr well they issue me there since they have as i understand it is that the lawyer didn't explain that that was an option even and that maybe seem overly technical but it seems to me it's one thing to say this is twisting you know and another to say well even so if you disagree with that and i want i strongly advise you to take the deal that and even and even if even if it did you still have to show prejudice and they're just right here he is he was drawing the plea agreement you spend more time in the big house and that apparently would have had to have been discussed or they wouldn't sign the plea agreement in the first place right are we as a court of appeal entitled to infer or must we rely exclusively on the record for this is it counsel of the defense counsel's burden to show that this is what was said that what was interred who would burn is this anyway well i think it's the you know burden he's the one brought the twenty five to fifty five so he's got the burden to show what the facts were and i think you can take any reasonable inferences from appeal saying hey we didn't agree to this and this court has said you know restrictions on coming back to san francisco i believe is one of the cases things like that pretty big conditions and this is a fairly mild condition of supervise release we're talking about here and i just don't think it's such a mild condition i don't think the defendant could ever show prejudice here i think any perjury any defendant is going to take this deal even if there are no to show prejudicial doesn't have to show that he started my opening statement about how an attorney's job is not to make sure that her client makes the best or even a good decision that it's a well informed decision so the fact that this may have been a good deal is irrelevant he didn't know that he could court case which that occurred at sentencing and yes the defendant was standing right there counsel was standing right there the judge said if you agree to waive appeal i will give you a lower sentence they conferred the defendant agreed to waive appeal got a lower sentence this court set that aside because that was improper injection into the plane to go in this but in this case then and to distinguish it from the cases that counsel is talking about this is an eleven c one c agreement the other cases that the government cites a majority of the cases aside from there's one ride but all of the other cases that the government sites and their brief are are not eleven c one c agreements this one is and this one says specifically the sentence will be between one hundred twenty and one hundred forty four months