rule based on the merits it was not frivolous and petty without merit and advancer to the second stage proceedings and appointed counsel after about three years thereafter counsel filed a motion to withdraw it was labeled a family motion but in essence it was a motion people rear it withdraws post convention counsel that motion was allowed and at the same time danny's mission was dismissed according to the state's  question that we have raised in our healing that we're really addressing here is whether that motion to withdraw should have been a lot and we have in our briefs we've really addressed two reasons why that should think that second part is really the heart of the issue here and i'd like to if i may sort of focus on that year old of course i'm happy to take questions on and the other issue so when we're addressing the question of claim is in many respects a fairly simple ineffective assistance of counsel then he alleged in his petition and in the supporting half of favorites that is attorney informed him that there had been found on his clothing blood that would most likely turn out to be the victim's obviously some fairly incriminating evidence it came out during actually in the course of the sentencing hearing it was revealed that there was no blood of any kind whatsoever on dance club then he has alleged that it was because of the misrepresentations that he received from his attorney and that he agreed to plead guilty and he has alleged the existence of america for his defense or at least defense as the case law refers to to the most serious charges that he faced which was this charge of attempted murder that is the most serious charge to which he pled now in addressing the merits of this particular claim and why it's not be taken as true clearly allege that there was the statement regarding blood on the clothing the record demonstrates that there was no blood on the boat so there was a mistake of ever did that misstatement induce him or cause him to plead guilty well we have again his statement yes i wouldn't pled guilty otherwise we have the fact that he actually tried to withdraw his plea prior to sentencing this wasn't sort of a classic buyer's remorse in our you know where you know a defendant all of a sudden realizes wow i'm sitting in prison for thirty five years now and i wish i had played he had never been sentenced he still could have received a much lower sentence when he asked to withdraw his plea because he felt that he had been coerced by his attorney and we have the existence of america for his defense which further supports the notion that he would not yield and in this case we know there's a well you know there's at least a plausible simply because of the defense of his already succeed codefendant chris  accountability it was found not guilty of attempted murder he was found guilty of the lesser charge of aggravated battery now under those circumstances i would say the federal reserve or in the residence of the correct i know how it was never in the snow so there is i don't want to suggest that there was absolutely no difference in what mr keener and what mr actually did but though the trial court in this case even found themselves there was never any evidence that danny actually participated in arming this victim or even that he was present at the time that the victim was armed so when we talk about the difference between attempt murder and aggravated battery that's really a question of what the actions of this third person bruce lloyd amounted to were those actions attempted murder or more of those actions decker's fact and as all is concerned those actions can be considered and made better then equally as danny is concerned those actions could be considered aggravated battery which would have given him a at least plausible to facts to the more serious charge of the face so that's that's sort of the the outlines of why we really feel that there is a meritorious claim here or at least a claim which is not realistic at that there and it does bear notice that in fact the trial court has already determined that there was at least one claim in conclude this in fact is a frivolous claim things can happen in the course of an attorney's investigation they could learn that for example one of the aa fiances decided that they're not they're not going to testify or they could recant their statement there could be a change in the render this claim now frivolous where previously it was a counsel didn't press the claim at all and so we really are dealing with a situation where as far as the frivolousness determination is concerned literally nothing has changed from the day that the trial court made its decision and said this petition is not frivolous and at me without merit it needs to go to second stage to the day when the trial court then turned around and said actually we're going to allow counsel with ro investigating the claimant counsel's no doubt capable formulating the claim beyond a mere jest about the question of whether it's frivolous and patently without merit hopwood was very clear that it's not a jest that's a different standard just as allegation frivolous and pa a listen at least without marriage which is precisely the determination that is required to allow a motion to withdraw and in this case the record doesn't show us anything that changed anything that transpired so altered  so as far as that is concerned though yes again we're not disputing that it could happen just in this particular case the record contains no information demonstrating that anything changed that could alter that that interpretation all that being said i think that up there there's been some debate within the briefs about whether or not this claim was actually in fact alleged in the petition and i would like to address that briefly just to ensure and under people v townsend and a number of other cases whenever one is assessing these kinds of pro se filings and the claims that they state one takes account of both the petition itself and the supporting affidavits that are and when the as i believe we demonstrated in their briefs when you combine the statements that are in the affidavits with the statements that danny made within his petition you do in fact have all of the necessary facts to blood on his shirt to show also did not allege that counsel informed him that there was blood on the shirt or anything as to the evidence that should be said that cultural lie to him and his a and his mother in an effort to coerce him guilty plea and i'd like to touch on something that we did talk about the brief but i'd like to stand on it and of course that is that the defense worthy of consideration issue we argued that there was no defense for the in consideration and that's the other thing the defendant would have to establish eventually that he had a defense worthy of consideration and that's part of the requirement that he has to show that by for any error by counsel that there's a reasonable probability that he would have not pleaded guilty and would have insisted on going to tr were may have been that the victim's medical condition was more serious than was shown in the medical and the police reports that he alleges counsel hid from him and which she asserts would not support an attempted murder charge in these offenses he never entered the house and also the defendant was charged with many offenses in this case and one in another case a big robbery which were dismissed and exchange for his here i would like to address just a couple of a couple of points there well first of all as to the similarly situated the fact that hall was a juvenile at the time the whole service as a juvenile is completely irrelevant to the don't want to tell you something that i'm not certain of i believe it was a bench trial but because of the charges he was facing he may have been eligible for a jury trial so but in the end here well again we've never contended that their actions were exactly the same  the difference between aggravated battery and attempted murder it's not in the degree of accountability they're moving the ball or whatever routes lloyd it if a court found that what bruce lloyd did was aggravated battery as opposed to being attempted murder then that's just as reasonable a finding for danny as it is for press out the fact that howell was perhaps a somewhat lesser participant in this although his affidavit that he later gave mr keen and that was given to the trial court indicates that he was somewhat greater purpose in it than he originally made up but regardless we are dealing with an accountability situation and the accountability is for the acts of mr lloyd which are the same regard and if a court could determine the woman's for boy did was not attempted murder it was aggravated battery that's and that is a determination that could apply equally well to danny or as far as what the petition doesn't doesn't state in terms of the lies that were told to me references but great many lies that he feels he was told by his attorney we have chosen to focus on a particular live are or misstatement we don't know but a particular misstatement of evidence simply because it happens to be whatever other lies may have been involved or misstatements or what after this in and of itself is very clear and it's a powerful piece but what on the clothing makes a big difference in the way you view your situation going in trucks and so that right there i think clearly establishes the basis of claim and then he does say several times throughout his petition i would not have pled guilty if not for the wrongful actions of my attorney now how specific he is about that again we have to remember this was a pro se petition written by a kid who was seventeen years old when he was incarcerated and initiate a great this court the supreme court have all been very clear that when we're reading these kinds of pro se documents we need to give them a