of both ineffective assistance and prosecutorial misconduct in the form of discovery violations but this case really boils down to that an issue of fundamental fairness and that evidence was withheld from mr to  all since some fifty years now that although the trial judge is within the discretion of the trial judge as to whether or not to allow a withdrawal plea it's a discretion that should always be exercised in favor  innocence and with a preference toward a trial on the merits and certainly i would go directly in fact to maury and suggest that all of the categories under which morial said the judge should allow for all the plea are pretty much here first of all that the plea was entered on a misapprehension of the facts or was in consequences of misrepresentations by counsel or the state's attorney or someone else in authority  entered in a misapprehension of the facts that being that d n a evidence was completely immaterial and see in significance which is what his trial attorney told him told him that regardless of the outcome of the d test it would not make a difference to this case now counsel is there anything in the record to indicate that the defendant was forced to take the state's offer within the specific period of time i believe what the evidence shows is that he was given basically his attorney refused to inquire into the d n a he repeatedly inquired about the d n a test results and she essentially said those are not material those are not relevant i don't care what they say they're not going to change the outcome of this case and in fact she tried to about the strength of the state's case not withstanding then d n a evidence isn't that correct the nine one one call  she talked to him about her assessment of the rest of the case and i believe that it's simply reasonable to give a client any kind of recommendation or advice about a case where there is  scientific evidence that's still outstanding that the client is inquiring about and are you saying that she pressed him to take the offer even though there was at that particular moment even though there was no deadline by the state i that with the record demonstrate all the record actually demonstrates that this case was being pushed to a judgment which is another unusual thing in this case that there were initially three class sex charges against mr to go meet three predatory criminal six sexual assault charges he was sixteen two days before the trial date on feb fourteenth the state brought in a motion asking to be allowed to bring him one fifteen ten statements most of those are at least some of the statements had not even been tendered to the defense the judge indicated that he was not willing to continue the date and they were going to continue to the trial date of february sixteenth and maybe maybe you would or wouldn't allow the state to introduce the one fifteen ten statements some of which the did agree to continue the trial to march thirtieth the part sorry the parties appeared in court and court on march twenty first and defense counsel a fair point and that was a time when the first d n a test results were effective vailable very significant test result showing that all the samples taken from the complainant national a no oral swab samples from her from her legs not only was it only her d n a found on her but they were able to exclude the defendant as the source of any d n a so it wasn't just that inconsistent he could be excluded or if there wasn't enough to test it he was excluded but on the twenty first when these results were available defense counsel tended to court announced to the judge that they were trying to work things out and that the state was going to give the defense additional discovery i don't know i don't know what discovery that refers to because there was additional discovery available including this very significant d n a test result and yet the defense never got  defense attorney never requested it defendant was never told about it i think in this respect to whether this was knowing the voluntary or the defendant had the option of not taking the plea it's similar in some respect the supreme court's recent decision and people recall from two thousand and five and there was a case where it was a post conviction case the defendant had entered a guilty plea to an aggravated kidnapping based on the allegation that he had taken a car with a believe a two year old child in the back in his post conviction petition he said i told my lawyer i didn't know the child was in the bed my lawyer told me that a defense and that if i got convicted i would get twenty five years and so based on that advice i took the plea and supreme court upheld that if those facts were in fact proof and evidence rehearing that would show that he had a viable defense and he would be entitled to withdraw his plea i think what happened here is very similar to this defense attorney said the state has a strong case that you're going to get convicted because of the violent nature of the charges you are going to be convict and i at least two of the three charges the state will easily get a sentence in double digits the results after the trial will be incredibly severe and essentially that the d n a test results whatever they show you know i know the record shows a number of very troubling inconsistent season the state's evidence first of all i haven't we don't know what the one fifteen ten statements are but mr to do me did a legend is post conviction petition that the complain ant statements in the videotapes were very inconsistent secondly the report of the offense was inconsistent it initially started out as a report that the defense was found lying on top of the complainant and then at i see in the record is that there were some inconsistency according to what's in the record by the complainant herself now what those are unfortunately don't know because we don't have the one fifteen ten tapes the trans t with respect to the attorney saying the state had a strong case to my mind that best equivalent to saying you have a case where there is eyewitness testimony and what this is really boiling down to i think is eyewitness testimony because there is no scientific objective evidence that is leaking district to me to this offense so if you have a case where it's based on eyewitness testimony and the defense attorney questions the state witnesses and they're very easy they're i don't i don't know that we know with this war here to hand information back and piers to me that at least she would have information about the inconsistent sees in the complainants own statement because i would assume at some point the state did turn over complainants statements and there is an allegation in the record that those statements in themselves were inconsistent by that but i think your honor it is to go beyond that i believe it's reasonable assistance where niche where applying the same i would like to see that evidence for example if you have a case with simply eye witness testimony and the defendant tells his attorney i know when i'm witness who was at the scene saw the offense happen and can say without any question that it wasn't me would it be reasonable for the attorney of them point to say well i've talked to the state witnesses and pointed they really sound credible and i if the complainant story on what happened or the and story as to what happened is credible it's it's certainly something that should be given to a jury in situation where the defendant through right and everyone agrees throughout the course of this trial court proceeding up to the time a guilty plea he repeatedly asked about the d n a test in that situation where his lawyer is basically telling it doesn't matter well we know that it doesn't matter when you look at the hocking very case in the stars case d n a does matter d n a has exculpated people in illinois and a number of occasions and what he's asking is an opportunity to present that evidence to a finder of fact when it was available it wasn't tender to him his attorney basically told him he wasn't a defense when it is and he wasn't really given an option to proceed because she essentially told him it's not it doesn't make a difference that was just wrong advice that was improper and the answer to that simply is no and the next question really should be answered is what did the defendant or what didn't the defendant know and when did he know that and the answer is he knew everything and including what he didn't what kind of what kind of information defended him well first of all that he had the nine one one call unfortunately none of this is part of the evidence and so th the defendant was on top of the victim and then later on it became the two of them were reviewed inside this closet and they stipulated to the evidence what happened to the rest of it is could have been an additional part of it or could and other information that was out there was an audio and videotape of the child to the police saying what the defendant had done to her which really allegations were what the defendant did to her there was also information i anywhere my feeling is that the other evidence presented by the state that the state has is so we didn't get to you you're going to be convicted and they asked her they said at where the claim by the defendant in the post conviction petition was that his plea was not knowing involuntary because his lawyer told me he did not have a defense to be an aggregate kidnapping charge when in fact they have would have been a defense so mouth the state's attorney at the hearing said well it doesn't matter that there was no d n a evidence associated with the defendant from the oral swab because they didn't take that swab until many hours later at the hospital but there is some indication in this record that the swabs were taken and the police station of the child's mouth which also again calls into question the entirety of this story with respect to whether the defense counsel refused to seek the d n a test results so that's how i would characterize it after the time she was advising him and telling him they were immaterial these test results at least with respect to the child which excluded the defendant every aspect of the child a excluded the defendant she never called to ask about the test she never asked the prosecutor for the test she never subpoenaed them in my mind that's a refusal to get the d n a evidence  opposing counsel comment that well when miss maturer was asked did he ever tell you he didn't commit that offense and she said all of us know exactly what he said i don't know what she meant by it's never explained but she does agree that he never was consistently asking about that d n a and one of the d n a and now we know those test results i mean to say they're not it's going to tory to me is mind boggling when you look at the allegations that were made in this case as a  whole in this case because there's a question of his innocence because he didn't get the test results he saw and because it would be in the hands of justice to send this back for trial on the merits which is what he's seeking we would ask that