and i will say that i don't i don't really we believe we've talked about this and we don't see an issue with regard to it since it's just pretty much the same holding his sister district is it rea all right you may proceed it please the court in his post conviction petition adrian sweater made a substantial showing that he received ineffective assistance of counsel where trial counsel failed to inform him of the deportation consequences of pleading guilty india versus kentucky the supreme court held that council's performance is deficient or he fails to inform a client of these deportation consequences concerning prejudice do you know that the standard from strictly which is that a defendant establishes prejudice where he shows up for counsel's errors the outcome of the proceedings would have been different and applying that standard to the deportation context the dia held a petitioner a petitioner must convince insights hill versus lockhart to support the standard that in certain contexts the defendant needs to allege of possible  it's because the court makes clear what the standard should be that there is a rational reason for him under the circumstances to have rejected the plea deal and that's what we have of this case and what does it take to by the way i don't should be applied in people versus use which is cited in the states free race in the important point the people versus well it's not an immigration well it's important because it was decided before  and it's important it's not immigration face because and this is again made clear in darfur that in certain contexts it makes sense to look at whether a defendant has a plausible defense for trial but in the context of deportation that doesn't make however if you hold stuff where the deportation consequences are truly clear the council has a duty to advise of those specific consequences so the judges admonitions here that there may be immigration consequences would not have been sufficient when the mandatory consequences are clear well i think that that it is it is a true that that that they found that it was insufficient heart that they that they find that that since the judge said there may be consequences that didn't bar  counsel you know because because the judge you know judges the judges are expected to know all the immigration laws they're supposed to advise based on the statute that's in place and says you know there may be consequences but the fact that in those men i think what we take from that is they had just because the judge said there may be consequences doesn't bear that the appellant from coming in and saying my lawyer was  you know i don't want to leave and i want to so i want to test the state's theory i think a bare allegation that he wouldn't have pled guilty when piece of patient but if he adds additional factors such as the fact that he had been in the u s for thirty years that he had all of his friends and family deportation where that deficiency of counsel doesn't really have anything to do with the evidence at trial and we don't necessarily need to look at the evidence there could be situations where the outcome might have been different where it had counsel been aware of this mandatory deportation requirement he could have good morning your honour's may have please the court again let me ask you how do you get around with we get around by the fact that as you stated they did not address the prejudiced pong whatsoever in their case the fact is we've admitted that this attorney did not and backed by this defendant are the consequences of deportation however it must be remembered that in this case  not correct the trial court and back said they have a place to hold on you they haven't arrested you for i c e s so chances are if they haven't already they're not going to that is the only admonishment in any third district case that was given by a trial court that is why del toro guzman rays are not a political here back to your question regarding pity are they in left it up to the kentucky courts to determine whether or not there was prejudice prejudice had not been addressed at the lower level they were not going to do it in response to your honor's question we believe that there is dick that if there is any statement  not reach the issue he were noise supreme court has reached the issue they have said that a defendant who wants to vacate his guilty plea he must prove either actual innocence or a plausible defense if he is arguing that his attorney take they take the language from hell and they say that the question of whether councils deficient representation cause a defendant to plead guilty depends in large part and predicting whether the defendant likely would have been successful in trial but does it mean in large part i certainly doesn't mean sold no it does not but i believe the room between enlarged heart and soul well it is certainly not with the defendant is claiming here that in his affidavit he stated rez if i had known i would have not played guilty and i would have gone to trial without any evidence that he could have possibly been successful i know that the offense attorney had talked about possibly trying to work out a plea agreement you have to look at this defendant this defendant was apparently here according to his affidavit for thirty years in that thirty years he had been arrested over thirty six times right i mean his mental state he would have to be able to prove that he didn't even state that in this affidavit no evidence just in the p s shifted that he argues that on appeal but they have we would state is an insufficient basis to prove prejudice he does not argue any defense he was caught in the house with the copper piping bundled up and he admitted that he had taken it the holes were in the wall he was clearly stealing copper piping from a foreclosure your so your argument basically is that when someone please guilty because they defendant has still to prove prejudice and that his statement simply that he would have gone to trial had he known which he did not because the trial court it not a sham but had he known from his attorney that he could have been deported that his statement alone is it is insufficient and basically would be a finding of per se prejudice that would completely obliterate the the second prong of strickland this is not a chronic issue we have looked at all of our relevant cases who clearly say strickland is the controlling pronk that we have to look at and here this second part has not been proven whatsoever there's absolutely nothing in this record has to be a showing of prejudice in other words there was a defense is that what you want to see right through things your honor if i can we would like you to follow the illinois supreme court's decision which as this court noted of people versus dads must be followed we also like you to point out that this could be a moot point as there is no remedy here this defendant was deported on june fourth two thousand and thirteen he is not in this country anymore  that because there is no possibility for there to be a remedy in our position would be if you were to remain for an evidentiary hearing who would be testifying the defendant is not here he can't come back into the country to testify at an evidentiary hearing if he only issue presently before the court is whether or not the trial court violated the defendant's constitutional rights by failure to admonish and whether p d s has changed the director says collateral consequence well they're going to be accomplished in any and the one thing i wanted to point out your honor you were asked whether del toro cited hall they did cite hall but they only cited that for if the defendant had not known he would have insisted on going to trial they cut the the standard from hall they didn't take the entire language as required as the illinois supreme court requires the defendant to prove and here again he would state that the defendant has not made the this substantial showing that he needed to it's just it's simply not rational for defendant to have rejected the plea here and gone to trial he would not have been spared deportation upon his conviction and again as we stated it's just mere speculation whether he would have been able to get any better relief remedy the defendant is in mexico he was deported and he can't come back for an evidentiary hearing yes his attorney could testify but again the the fact that we don't really have a remedy here we would mister what about the argument of the state that if we were to adopt the third district pastor in these cases that in every deportation case we necessarily have to presume prejudice there has to be some showing of the fact that it's rational under the circumstances for the defendant to reject the pleat so it has to be more than a barrel location which is what we have here the fact that a defendant has been in the think what you're saying now of course he doesn't want to leave the country of course he's got a family here i mean is that really what the case is suggesting that's going to be something that will meet the test that will certainly don't throw would case precedent when you're suggesting that it's just enough to say i would plead pled guilty that i know this well i'm going to have to be more than just pled guilty there has to be these factors of having been in the united states and they can take into account what a possible defen be but that would be the only factor so if we have a defendant who's facing a murder charge for a really high sentence it just came to the u s has no ties here you know that might be a situation where we wouldn't presume prejudice but the so are you  are you saying that we should maybe have a third test that you did agree earlier that this this pleading didn't fit into either the plausible defense or innocence lost that's correct and i think the language of paul doesn't doesn't necessarily say specially when looking back to the fact that the sites hope the law part doesn't say that in every single case where a defendant said he would have preferred to go to trial that there has to be either an articulation of a possible defense or claim of actual innocence i think you make clear that in certain contexts those considerations are so you agree with counsel that really there isn't a case like ours where there were actually get magicians that were correct well people versus clear that it's mandatory you agree with counsel that there aren't really any cases that support intoxication as a burglary or i think he alleged that was true that would be the only allegation but it well there could be theoretically even a higher showing of prejudice at that hearing where his family could come in and the petition stated that his family knew that he had this history of intoxication they could come in to support that to make his defense more likely again if there's any if there is process through immigration where he would be allowed readmission would mean he would no longer be though if if for some reason his conviction was overturned then he's no longer eligible under the statute for deportation because he's only deported we really jumping ahead there isn't this post conviction petition that was dismissed the second stage in order to determine whether or not this could be vacated so that then everything would start all over again in terms of a trial have to show some type of rational basis for the vacation of this plea of well i think that's what the requirement under her under p d is that there has to be a rational showing under the circumstances that he would