thank you right good morning i do apologize without any prompting from counsel later few pages later  based on what the judge said the record we have the fact that the judge under the agreement could have gone to a maximum nine enhanced sentence of fifteen we would be in a different position of trying to be the trial judge is mine and i think the state would have a strong case but for the reasons i stated i think i can look at the record here and ok this is a post conviction petition correct yes what is the constitutional claim that you're raising here the constitutional claim of this is this is not a conscious place but it is a claim that dismissed three of the four counts and it agreed to a thirty year cap on the defendant really was subject to seventy five years up to seventy five that's correct but the state gets its conviction for armed robbery which it would going to be a twenty four year sentence you know as you started with fifteen you have a so i'm just trying to understand your argument that we know what he would have done if we were just in the six to thirty range without any other because he said i'm given nine and i don't mean this in any disrespectful way i think that once the judge expressed and explain how he allocated that's the record that's a revelation of his thought process and to put it bluntly i think you know i don't really need to be disrespectful but the judge is stuck with that he stuck with his own reason he stuck with the fact that on the record he said apart from a fifteen year enhanced i believe that this defendant deserves nine years for the crime itself at the judge you're still going to impose a sen includes the fifteen year notes but that that's not being overlooked was within the range of twenty one to thirty to twenty one would be the minimum with the enhanced so while i would agree that it was incumbent on the judge to take the fift he had to post a sentence that took that count but he did not have to put on the record how he was alec and he chose to do so i'm not you wouldn't need a position or you with your right i would certainly be in a much weaker position and i probably would not yes i don't think i could be making that argument asked to go above twenty four years earlier i disagree that i agree in the sense that it shouldn't go beyond may please the court system attorney generals are sufficient for the people your honour's has already been discussed parties have agreed on many of the issues that were presented by this case so unless the court fifteen year firearm in hand there's no reason to have to guess what the trial court would have done and that's why i think this court when presented multiple times and i was shouting clemens with the opportunity to apply the remedy that shall that it was necessary to give the court an opportunity to consider its sentence in light of the proper statute and the defendant's sentence as a whole and i think that the facts of this case because application of the statute to cases like this where a sentence is unforeseeable creates numerous problems the most obvious is a situation where  a defendant has been convicted but sentenced to a sentence that is a lot lower than the statutory minimum and just to create a hypothetical where that could happen and in between when the general forcible again there was dispute in the lower courts as to whether or not firearms should be applied so there could have been a situation where a defendant was convicted of armed robbery the state had charge of the possession of a at trial it can't be that i'm retrial you know once this court had made clear that the statutory minimum for armed robbery with a firearm is twenty one years that the court was forced all sentences such as this one where the statute is on enforceable where or for example whether the sentence is outside of the statutory range would be problematic and and need to be remanded for sentencing within the proper statute that authority range and at any time and that would not be that rule cannot be maintained if this statute was appl observation and then we couldn't have equally be said that we do know that he had no intention of assess in a thirty year sentence because he had that opportunity even with the and the enhancements in play so my question is why wouldn't although i know it's not directly on point why wouldn't we employ the reasons noted in peers to limit under fundamental fairness of nothing else to twenty four years on your honor i think that because of some of the hypotheticals that that arise i thought of when they when they actually were would come up in court but but i'm going to present one which is light for the moment i decided to because of the hypothetical i'm about to discuss it the courts rule while it doesn't seem to me a difference necessarily in this case where the courts have the opportunity to sentence up to thirty years under its understanding of the law at the time and will still have an opportunity to impose the same range of sentences on remand for resentencing that cords  be restricted in that way even when the sentence they gave happens to fall within the proper steps story sentencing range for example to go back to my hypothetical earlier about someone who's convicted of armed robbery with a of twenty five years while declining to apply a fifteen year firearm an incident that still fall within the proper twenty one to forty five year range but if asked to reconsider the appropriate sentence while applying the face is the appropriate approach approach to take and i think to go back to the wording of the actual statute i mean i think it's worth noting that in this case and in cases like this where where th d regardless of which direction the movement in the proper sentence goes the proper remedy is to give a trial court the opportunity to use  the proper remedy in this case and i was shouting clemens on the court make clear that where you have a portion of his cause problems such as this one proper remedy is for resentencing subject to this actually as it existed prior to an accident of the conceded that now but the u s supreme court and the lower courts in this state are both out that even when a subsequent pronouncement of the court creates a lower sentencing range than the parties reasonably believed to be the case i'm guilty plea as long as the defendant knew was properly instructed as to the range you face under the law at that time it's a knowing voluntary go thank you thank you was that that was insulting itself was raised in the post conviction petitions that wasn't the constitutional issue but whether you want to i think we're way beyond what was originally played in your petition of that was the sentence was void the way that the issue was raised in the p c was that yes i want to point out that the terms we know that the judge didn't go higher than twenty four and so there's no reason to assume that the judge as might have been done in other situations but it would be vindictive or would be punishing the defendant for making a successful argument that the goes out the window and it seems to me or create a situation worse the state is trying to have it both ways here that bennett is stuck with a guilty plea but the state isn't stuck with a twenty four year sentence that  to make the defendant abide by that you'll be plea and i think the state has to accept the sentence that the judge imposed that was for him to everybody's understanding at the time of the will be you know the time of the sentencing