that mr triplett when he filed his original motion to withdraw his guilty plea didn't say enough about the reasons why it was so important to him that the state trial judge not consider the reading offenses affectively the relevant conduct in imposing sentence that is really an obvious point in response to the procedural argument that the statement made we laid out for responses in our reply brief i want to highlight two of  them st and foremost the state has waived this argument in particular the state in responding to mr triplet original motion to withdraw his guilty plea did not say anything about this particular point didn't argue a procedural point at all and this isn't some technical football by the state this this had real impact on mr triplett had the state raised this point in response to mr triplets original motion  triplett could have fixed the problem he could have filed amended motion he could have filed in additional affidavit in support of his motions he could have even said something in his reply brief in response to the state's argument but because the state never said anything mr tripp but i had no reason to question his own point sufficiency of his own statements and to be patently unfair here for the state to rely on its own failure affectively as a shield to keep this court from reviewing the merits of the case the other point i want to highlight is essential if the flipside of the same coin and it is that independent adequate state grounds point for the state to establish adequacy it needed to show that this rule was regularly followed in the state of wisconsin st and foremost this was the state's burden to show it's the state looking for this affirmative defense and the state didn't put for any argument or any facts to establish some terrible point in response to this trip to mr triplets hippias petition and if anything the record really establishes the opposite that this is not a rule that's regularly followed in the state of wisconsin again the state itself didn't rely on this rule in responding to mr triplets original motion to withdraw his guilty plea but didn't rely on this rule in the it was consequent of appeal importantly the wisconsin trial judge said nothing about this procedural rule in new denying mr tripp what a relief on his original motion and it would have been easy for with a trial judge to say motion denied you have not adequately played this point this is old really really strong evidence that this is not a rule that regularly followed in this context in this way in wisconsin courts and if it's not readily followed it's not an adequate state ground and so the procedural bar cannot apply i want to spend a few minutes talking about the substance of the claim and focus immediately on prejudice the state has made any i think is a remarkable concession for the st time in the six years of these proceedings the st time the state is now a part of now conceding that wisconsin trial judge did not consider the reading offense or i'm sorry did explaining why mr trimble had not shown prejudice this is the one that if this were true if the it was constant trial judge really had not considered the readers in opposing sentencing then the really isn't prejudice and so that's why it's important that the state is conceding that that's not true that that's not accurate the other point on which the courts have relied the language in the plea questionnaire the fact that mr tripp would receive the benefit in the total sense of exposure by pleading guilty and the fact that he pled guilty to one count of human trafficking related to one victim those are not grounds to overcome the prejudice  or triplet they were doing a plea questionnaire how old with that judge's confirmation that the pleas hearing that that really this is a point about definitions an explanation in the plea questionnaire your honor does the police questionnaire doesn't actually explain what leaving means and at the time that mr triplett is signing the plea questionnaire  judge would not consider the conduct to which mr template was not pleading guilty to conduct that mr tripp was not admitting that the judge would not consider that was the statement that was the advice that attorney earl gave to mr tripp and so when mr tripp was reading that the questionnaire without any sort of definition or explanation in that questionnaire about what we know in meetings the natural point for him is to accept what his attorney is telling  and believe that the judge isn't going to up this sentence based on conduct which he was not admitting that is that is the disconnect between the language in the plea questionnaire and the advice to miss advice that attorney earl gave really what the the courts and in wisconsin all were expecting of mr tripp what was to see a disconnect see a discrepancy between the advice that mr earle attorney inning and the language in the plea questionnaire decide for himself that the plea question was somehow right and attorney earle was wrong and then go from there and realize on his own despite his attorney's advice th plea questionnaire was controlling and that the judge was going to up a sentence based on facts that he wasn't admitting it was correct that's that's just not reasonable and it's not it's really not supported by the language in the plea questionnaire on a claim with ineffective assistance of counsel the court specifically held that triplet had not sufficiently alleged that he was prejudiced and thus wasn't entitled to a hearing at least in and th as to whether the wisconsin court of appeals decisions as to the adequacy of his pleading was interwoven with the merits of this triplets in effect  i don't believe so the court of appeals clearly identified the controlling standard by saying conclusory allegations in support of a claim of in effect of assistance are not enough to obtain an evidentiary hearing and then applied those standards by saying mr triplets elevation of prejudice which was just a bare assertion i would not have pleaded guilty and i would have gone to trial for counsel's advice was a conclusory allegation the he would and he hadn't proved i'm sorry that he hadn't proved that he would not have gone to trial but for counsel's advice a court of appeals never specifically said he's not prejudiced and that it should help that he had not made a sufficient initial showing to counsel's advice the court was just offering some examples of what baby was a relevant consideration that he could have explained why he wouldn't have why he would have rejected the plea agreements  that i don't think there can be any dispute reading the sentencing transcript that the court did consider at least with respect to the the bulk of the reading offenses were prostitution related and the court only the charges that were applied to only involve one victim the court and it's something that isn't referred to the victims in plural to describe them as women so i think there's like there can be no dispute that  actually did do consider that but i don't think that that is sufficient to establish prejudice under these circumstances had the court you know obviously not considered reading avengers that would show that mr triplet was not prejudiced in that case but simply because the court considered the reading charges at them thing as it was allowed to do under wisconsin law that does not mean that in search of what has shown what is required standards man can't you elsewhere and as you pointed out in the brief  wisconsin prohibiting riots and hearsay to prove or to allege sufficient back to give evidence rehearing in wisconsin actually most of the time the focus is not on any affidavits attached to the motion it's on the motion itself which is just decision if this court is going to find that the claim is not to fall did then i think there's a decision on the merits that this court has to defer to and i don't believe that there's any can be really a reasonable dispute that there the court of appeal decision reasonably applied hill versus lockhart hill you know had specific language saying that when the defendant alleges he wouldn't have taken the plea but for counsel's advice as defendant should allege something special something that depict circumstances related to the advice that was made it so important to him that the defendant would have taken the plea in this case certainly in the state court the defendant did not a of those special circumstances that we just have a fair search and that it he would have taken the plea there's nothing to explain why the court not considering these recent offenses was so important to the defendant that he would  foregone as the court of appeal does say a substantial benefit significant reduction in sentence exposure a pretty good recommendation from the state and sentencing state agreed not to make a specific sentencing recommendation a agreed to recommend that the sentences be served concurrently you know mr triplett knew he was subject to the maximum sentence is on the charge he pleaded to in he hasn't really the obvious point still remains that the reason why this was so important mr tripp what was that it was actual sentence that matters it's not the total sentence exposure to a defendant that matters if you take  who ends up with stat max ten year sentence the person who's serving the ten year sentence is the one who would say that he is worse off not the person who got the higher the lower of the higher set it's not exposure that matters it's sets that's why a judge is reliance on the relevant conduct the readings was so critical to the sentencing and so critical to mr triplets analysis and it's not the final outcome that matters underhill us for the reasons that we put forth in our brief and if it isn't ambiguous then it is clearly not in a regularly followed rule test to be one of those two outcomes either there are decisions ambiguous or you really