good morning your honour's may it please the court my name is stacey newman and i represent mr ben wallace i'd like to reserve two minutes for a battle in state court mr van wells agreed to plead guilty with the understanding that the state would not recommend a sentence of life without the possibility of parole and with the understanding that he would be free to argue a sentence of twenty to fifty years however due to the ineffectiveness of his trial counsel mr ben wallace the sentencing court was confused about those negotiations the court mistakenly thought that wallace agreed that a sentence of twenty to life was appropriate and surprisingly the court then imposed that sentence saying quote in this is that you are for a one the court will follow the negotiations of the parties the court will not impose the twenty to fifty requested by the defense but will follow the parties negotiations so can i ask you question it seems to me that there's a couple different ways you could interpret that statement follow the negotiation of the parties one is the parties have agreed that life without the possibility of parole would not be accepted why can't you just why can't that be interpreted as say all follow the agreement of the parties and i'm not going to impose life without the possibility of parole your honor that is one way of interpreting it but given that statement and the other statements that the court made a more reasonable reading is that the court is confused for example at three ninety six this is at the beginning of the sentencing hearing mr ben wallace his trial counsel tells the court if you sen client to greater than twenty years to life he can withdraw his plea and the court says i thought that was your negotiation when i was confused about something else there which was then straightened out but a different thing about which direction the the withdrawal correct correct your honor act yes and that occurred about three months prior to this sunday as in hearing and that was perfectly lucid and perfectly accurate yes your honor that did occur at the guilty plea canvas but later at the sentencing hearing the court refers to negotiat to life and instead but what he meant all along was that that was the top end as as opposed to what the probation officer was recommending right another was the probation officer was was recommending life as i understand it not a probation officer yes recommending a life and so what he was referring to was that the party stipulation is a would be a life that is a possible interpretation of it the other interpretation is that the court thought that everybody agreed this was a twenty to life case this is a very very sentencing less than ten transcript pages mr bennett also struck counsel didn't call any of the people in the court to testify it all happened very quickly and one inference that can be drawn  that sentence in court was confused about this in fact they referred to the negotiations as twenty to life and because there is a reasonable probability that the court is confused that is enough under strickland prejudice as well as a shorthand it was twenty to life no more than would be arguing for twenty to fifty but it never explicitly says that in the guilty plea memorandum it just says that mr ben wells will argue for a quote the the appropriate sentence does not make it clear that mr ben walls would be asking specifically for twenty to fifty years in that memorandum nor does the sentencing memo say that the sentencing memo that mr bennett also is trial counsel submitted just said that mr ben wells faced a sentence of twenty to life it did not specify that he was going to be arguing for twenty to fifty it just said twenty to immediately backed away from it but there's a great deal of difference between a sentence of twenty to fifty and a sentence of twenty to life just basically a classification within the prison system the chance that you have to expire and flatten that sentence and of course of mr ben wallace reaches year fifty of will mean a great deal to him he faces the possibility of getting out of prison versus spending the rest of his life in prison you just say specifically as a practical matter probably a nice not much difference but it may make a difference as far as his classification was in department present so you just say that yes he did list that factor but he didn't discuss all the other ways that a twenty to fifty year sentence is fundamentally different from an indeterminate twenty to life he's trying to argue for and very vigorously but that hasn't been your complaint as i understand  yet we had argued that below but we did not receive a c o way on that issue so we are here arguing that the court was confused and that trial counsel was ineffective for failing to correct the court's confusion on that matter is it true that  sentence because it's indefinite at this point he cannot he's prevented from being transferred to is that correct yes your honor mr ben wallace had reached out to the mexican consulate to explore the idea of serving his sentence in mexico he received a letter back from them saying sorry we can't help because you have an indeterminate sentence so that's another way that the twenty to fifty year sentence is fundamental is it twenty to fifty still undetermined your honor the mexican consulates position was because there was no definite end point and he face possibility of life that they could not go any further with that request so it wasn't because it was in determine it was because the point was life so they used sorry they used the phrase indeterminate but twenty to fifty years isn't a t  similar analysis that the supreme court utilized in naples v thomas which is a two thousand and twelve case and that case the supreme court said that or sorry applied equitable tolling language from the case hole in the florida of extraordinary circumstances and found that the same things in that case which was attorney abandonment that justified equitable tolling also established cause and that's exactly what happened in this case your honor so mr ben waltz's has set aside a cause and prejudice for the default and the basic asserted causes that he can speak english and there were no spanish language which aerials and prison library is that basically it there was a number of factors one was the language barrier and the lack of spanish materials there was also mr bennett also as placement admin segregation for luck lengthy periods of times once he arrived at these prisons he was moved around a lot there was his placement of the workers unit that prevented him from going to law library as much or as many times as he perhaps would have wished so there are a number of factors one of course yes being the spanish language barrier ok thank you  please the court amanda sage with the nevada attorney general's office on behalf of the respondent pelleas in this matter i'd like to recognize from the beginning that we are dealing with a few different standards here as we evaluate the claims the first being procedural default then we have the standards for the ineffective assistance of counsel claim and then to a lesser more indirect degree the equitable tolling claim and whether the court's finding regarding equitable tolling should have any bearing on the ultimate issue in this case of cause under procedural default however while each of these are different the court doesn't need to decide those differences or really address them in order to reject this claim because the underlying ineffective assistance of counsel claim here at lax merit concerts are you suggesting we don't need to address the equitable tolling argument can we just assume i believe that was was down below correct they just assumed without deciding that the claim was proper and then said there's no prejudice here correct equitable totally in ruling was not part of the c e o way that issue that comes up in the briefing is that because there was a basis for equitable tolling found by the district court that we should then assume that the petitioner can establish cause under procedural default that those two would be the same finding their different findings either way would be to know of a review under this court so regardless of how the district court handled it this court would be free to review that question to novo under the procedural do you fault i hope that answers your question that's ok so moving into the ineffective assistance of counsel claim here there are t large hurdles that the petitioner would have to overcome to show that there be any merit to this underlying ineffective assistance of counsel claim first they can show that deficient performance at sentencing first of counsel achieved i think a pretty remarkable outcome here the petitioner was facing possible consecutive life sentences without the possibility of parole so two consecutive life sentences because there was a weapons and handsome and he was able to negotiate that down to eliminate eliminate the weapons handsome and and allow so that the defendant would plead guilty and only face twenty to fifty on the low end or twenty to life if the court were to come in and sentence the defendant to the life without parole option he be allowed to withdraw that plea and proceed to sentencing so here that was made quite clear to the court at the colloquy the defendant's counsel got up and clearly explained the terms of the plea agreement corrected any misconceptions the court may have had we then get to the actual sentencing where the court judge perry made very clear on the record she was very familiar with the case she was familiar with the issues in the case in part because this isn't just a case that just came before the court once for an arraignment and then once again for sentencing it was actually proceeding to trial when he changed his plea it was on for a confirmation of trial date so she had heard some motions was very familiar with what was going on here she would have had that guilty plea agreement in front of her again at sentencing and the terms of it and when she expressed when she directly expressed confusion defense counsel did what reasonable counsel should do got up and clarify that confusion to say that they should have done more that there was some suggestion that there was any other confusion i think kind of places and a reasonable standard of what happens at sentencing so sentencing happen pretty quickly now we're sitting here and picking apart the judge's words after hours of analysis and being able to break it down and compare that doesn't happen at sentencing the counsels up things are happening quickly when there was a question about what the negotiations were he clarified it otherwise he proceeded as normal and asked ask for twenty to fifty years no one objected to that if there was any confusion the court would have brought that to everyone's attention certainly the state would have set up in such a hold on that's not our negotiations that didn't happen and anyone that sat through a number of sentencing in the trial courts know that it's pretty common for the sentencing court at the end to say i'm going to follow the negotiations indicating here i think the reasonable interpretation meaning i'm not going to impose that life without parole that probation parole and probation wanted her to impose i'm going to stick with the negotiations and impose that twenty to life so i don't think we can show deficient performance based on what council did at sentencing especially when you take into consideration the arguments that he made for the twenty to fifty life the mitigation package and be put together for the court bringing to the defendant's family to the court and bringing that to the attention of the court at sentencing then we have to get to that prejudice so i don't think we can show deficient performance that alone is enough  claimant from the district court and counsel maybe this is leading into where you're going but let's assume there was some misunderstanding what is our burden as a court to determine what the district court would have done absent i mean if we find that there was a misunderstand that enough we said we're going to send it back down and have the dischord we do this or is it is there still a hurdle the say there's really no reasonable facts narrow here where the district court would have gotten twenty to twenty to fifty and so that's enough i think that actually kind of touches on deficient performance and prejudice because even if we were to say the court had a misunderstanding we'd still have to find that counsel was objective leon reasonable and not catching that misunderstanding not correcting it given how this unseen proceeding had gone forward so we still have to make that deficient finding them going into prejudice i think that in this case it presents kind of an interesting question on what how we view that reasonable probability of a different outcome in trial so i know there were cases cited by petitioner that talked about for example glover that talked about were sentencing counsel something counsel's actions resulted in a greater sentence and that was enough to show prejudice but in cases like glover and the other case tillich that they talked about what sentencing councils actions did is prevented the defendant from receiving and otherwise sense that he was entitled to some glove or there was a miscalculation of the offender store that affected showing up in the defendant's history at least the qualified him as a habitual offender and expose him to that greater sentence that he received had counsel stepped up and said that's actually invalid that's not part of his criminal history then he would have been entitled to the lower sentence he would not have been here the defendant received a sentence that he planned to do that he agreed to as part of the negotiation so i think it would present an odd standard to say that when a defendant comes forward agrees to guilt for the crime and says i agree that i'm going to expose myself either to the twenty to fifty or twenty to life and has been sentenced pursuant to those negotiations that he somehow prejudiced but that seems difficult to me and i suppose it was quite clear never suggested that there would have been any argument to the contrary how does one know what would have happened if he understood the right what was correct i mean i don't and the ultimate question is whether the outcome he had been really confused about whether there was another option and i agree i don't think that we can come in here and say that there is a reasonable probability he would have received anything else so when you look at the facts of the case so i don't  you really thought this was a problem then it seems to me there would be pressures there won't be prejudice because you still have to show a reasonable probability of that different outcome and since we don't we don't know what the council or what the court would have done here there can't be that reasonable probability but i know certainty stricklin is a high standard so if i decide on my standard what do you have a situation where it's a high standard but if it's you know if there are two options and the judge didn't understand that there were two options why isn't there a reasonable possible probability you would have chosen the other option because we can look to the information was before the judge so she heard all of the information and any i think reasonable judge in this situation this isn't a case where you know there was a fight that escalated and there was a killing this was a planned calculated killing where he lured the victim into a position didn't even try to get the money that he was ostensibly trying to get from the victim shot the victim as he tried to flee i mean under those situations when you have constitutional violation we have no idea is a pretty good basis for us for the fact that there's a problem i don't know that we i don't think we're going to get there but nonetheless it's an interesting problem and and the point at which  o couple of things your honour's in response to counsel's argument that just because mr ben wallace received a lawful sentence that there could be no prejudice the court and glover did not decide whether there was an error in calculation that sent it back for consideration and also this court and leffler found ineffective assistance of counsel where the defendant received an otherwise lawful sentence but it was still worse than what they might have received and second of all there is a reasonable probability of a different outcome here because  candidate for twenty to fifty years he had a very minor criminal history he had only two nonviolent misdemeanor convictions and as evidenced by the thirty four letters of support he received from friends family employers by all accounts prior to this incident m is a hard working caring family man and this was completely out of character and most likely brought about by sudden subpoenas issues specifically method that all of that evidence you just referenced that was all before the district court correct yes your honor and one more