the way i read it she might have looked at the record as bolstering what she was in the psychosocial evaluation as bolstering what she was inclined to do anyway but she seemed quite clear that she thought the guy is a child molester he flat out lied at trial and i was the trial judge and i saw him lying and really didn't matter what the psychosocial evaluation did except for possibly making more confident in what she was doing going to do anyway why can't it be read that way we do have to defer to the state court so it seems to me that why can't it be read that way would be the appropriate question i think first and if we do get to the only basis in the second amended appeals for the denial and for the finding that the five essential evaluation with and favorable was that it was missing and in their first opinion they said we are making this binding based on both the sentencing transcript and the psycho law had never been appliance you know ignore the rest of the rock art if there was some evidence supporting the appellant claims they would still look beyond the one issue that was missing and they would see is there any other way to how the idaho law and applied it before and ask it all they want to step further and they said no we need a psychosexual evaluation only the psychosexual evaluation and in that opinion they they don't mention the sentencing transcripts at all once it was pointed out that it was she is simply rewriting the rock art when she's a post convention judge and is evaluating whether this psycho sexual evaluation which was i'm counsel really affected her determination and she's going back  subjectively saying i would have given the same finish she's in in essence getting a refinancing even though it's post convention and that's not the standard it's a should be objective and when you look at that sentencing trends get it is clear that the that the psychosocial evaluation did play a key role and so far as the superior court judges determination was affected i say he was not cooperative and she was concerned she didn't buy the idea he was uncomfortable answering the question she is considering that he is not participating and she is really she seems to be offended by that she said so when i look at all those facts that's basically the trial the trial and then that escobar was really not cooperative with the evaluation that's because he didn't answer most of the questions correctly and there's an argument to be made have is mr olson for the attorney general you your honor may it please the court the first thing i wanted to reference briefly was the case that's the subject of the state's rule twenty eight j letter to this court the latter more that case recognize that as of two thousand and fifteen the united states supreme court has not applied strickland to non capital sentencing proceedings therefore as in that case s q l cannot demonstrate that the idaho court of appeals application of the hughes standard in this case there is no holding that strickland doesn't apply to non capital sentencing correct yes i polish your honor it's just the united states supreme court has not recognize that it has when you say recognize you mean it hasn't yet there is not yet any holding that strickland applies but there also is no holding that there's a distinction to be drawn between capital and that's correct your honor but let's assume for purposes of discussion that strickland does apply that you're entitled to the effective assistance of coun in all criminal cases of the petty offenses just as you're entitled to the appointment of counsel and so forth let's just assume that for purposes of discussion what do you have to show that there's no prejudice while in a sentencing to yes what do you have to show that it just didn't matter i think if you look around that you want transcript and read the entire thing certainly the court talked about that it considered the p s c but in idaho and i assume every state the court is required to consider the evidence in front of it sentencing it doesn't necessarily follow from that that every single piece of evidence in front of it increased or decreased the sentence so i would say if you read that specific early in conjunction with  transcript of the motion for summary dismissal in which the court explained its reasoning for determining that the p s c itself did not increase the sentence i think it looked to me as as you know because i said so in my conversation with your opposing counsel that the the superior court judge kind of went back and forth on that and it looked like bolstering to me she just wanted to hammer him because he was a child molester trial but that's kind of me picking up an inference from the whole good stuff here and i wonder if there's something specific that supports that inference or something the same way well yes you are just the other factors that both the prosecutor and the judge talked about a reference you can make to actual words is helpful i think it probably be helpful to look at just the district court's summary how about referring to the specific words by the idaho judge because everything else is a secondary source ok with the idaho judge sentencing we can't the first of the district court i'm sorry the idaho trial judge yes page two hundred of the record there and page two sixty five of the transcript is where the court begins its sentencing explanation about the factors it considers and some of it talks about that encourage that it's considered the facts of the case that that there are a trial that found this victim very credible  it talked about that it reviewed particularly the the keris tape which which was interviews with the victim that were not admitted at trial and the court found the victim to be very credible so from my reading of the court's entire summary here the court was very persuaded by the facts of the trial which this trial judge sat through and also the impact of the victim is discussed and certainly the court like i said does mention the p s c well i think the court mentions the p s i i to which the p was attached but of course your honor like i said the court is required to read consider this information so i don't think it's going back and forth to say that it considered something but then to later say that ultimately that evidence to was not utilized to increase the victims of sexual abuse mr olson i've got two questions one probably pretty simple doesn't that the will are for me and one i think is the simple prejudiced that was considered by the court in sentencing and that was harmful i don't believe so your honor and the state district court determined that there was no such statement and the federal district court found no such statement either you know my second second question when i'm a little more troubled by it is is there any substantial possibility that it was in worth socom stance with the sentencing judge because he participated somewhat in part but then drew lines wouldn't answer certain questions as contrasted with if one finds of counsel and just said i'm not going there at all you know it is interesting his usually will have an evaluation or just someone or freezing to have an evaluation i think his omissions here it wasn't most of the evaluation and the judge the judge did seem a little bit annoyed and his and his attorney seemed a little bit surprised but there was no prejudice from that identified it's not something that the court talked about it sentencing summary it's not something that that any that any prejudice resulted from that found by the post conviction court in the federal district court it provided less information for the sentencing court i suppose but i don't think that you can read the sensing transcripts and the summary dismissal hearing transcript in conjunction and find that that those omissions were so severe as to cause i don't think we need to do anything with that because it's this was a state by state appellate lawyer regarding how things get into the record it's not in i don't think it's an issue for this court for a couple of reasons i think that s q l has tried to frame that as a factual determination and tried to shoehorn it into that part of it but i don't think that that falls under any of the four types of factual determinations recognized by taylor the maddux so i don't think there's there's any there's any that ha s no issue in our in our how does the i don't hope courts under idaho law treat an absent exhibit on appeal they will presume that it supports the the lower court's opinion that it supports the lower court's opinion is that the position that they took in this case it was your honor so the end result of that would be a lack of prejudice of the that's correct your honor because the p s c was not in the record then the then the court of appeals presume that it supported the state's argument that case sensually what is your position as to whether or not consideration it's certainly considered and i believe the trial court is required to consider the evidence before that sentencing and i just want to make sure that we distinguish that question from the question of whether the p s c ultimately increased the sentence so how how would we how do we determine that issue i think the best way to do that in this case is to well i guess you know it goes to whether we're looking at the review or de novo review but if we're if if this court does find there's an unreasonable factual determination here and reviews that p s even though it was not in front of the appellate court it's not particularly damaging to ask about he doesn't make any admissions he doesn't admit any attraction to children and he doesn't at the post conviction level that it did not influence its sense it's an ultimately involve a increased sentence because it didn't provide any new information that it wasn't already aware of during the trial so this is the same judge that held the court and i held the trial and in the post conviction he said it did not influence me it didn't increase it didn't decrease that's correct your honor is that a finding of fact that we consider or is that how judge makes a comment we usually accept it one way or the other believe cept it so what evidence is there in the record that's been shown so far in the by opposing counsel to your review that would indicate any way to impeach the statement of the trial judge the and they did not that the p s c did not cause him to increase or decrease the sentence your honor i think the best way to do that is to do what the hugh standard does in idaho which is focus on the p s c itself to see whether it's damaging to see whether it's favorable or unfavorable to ask about and in this case it doesn't contain any information that wasn't available elsewhere in the record and it doesn't contain any damning information that the court could have used to increase the sentence that the you make that argument in relationship to whether or not the trial judge can be impeached by the statement he made case they're also supported by the p s c itself which is the fed there's nothing in the record that shows that the district judge was mistaken or lying on whatever there's no and there's no evidence there's nothing that was that has been presented that would impeach the statement that the judge the sentencing judge made no your honor i believe that the statements made at sentencing and the statements made at the post conviction summary dismissal hearing can be read together there's nothing contradictory there the court considered the p s c as it was required to do but it did not ultimately result in increasing s q l sentence because it didn't create it didn't contain no use in your argument there's no cause you so we don't need to get to these into have to wouldn't of submitted to the p s c he did not the state court level your honor and i think that's important because if this case if this court does look at a do novo review of prejudice we've been focusing on whether the sentence is higher or lower but if if this court finds that hughes is an unreasonable application of strickland we're just applying stricklin directly to this and an accusation we're looking to see whether the result would have been different and that would certainly certainly include whether hughes is participation would have been different and that's very questionable in this case the question is he never said i wouldn't a submitted to it if only my lawyer told me i didn't have to which means that the claim ineffective assistance wouldn't matter to his participation and  then it looks from what the judge said like he told the psychosocial examiner and he told the jury the same thing i didn't do it as that about it that's pretty much it there was there was some other some other questions that he completed some of but the details of that weren't really discussed the content and sorry we're more than three minutes over time of the judge's questions and could i ask one of the question is if it's ok you sent to us there and it's called who are tension the case and gary versus lattimer yes and i read just one of our own opinions i read it and i just wanted to get what you you gave it to us for i'm sure an important reason how well you think that case will assist is in making our decision your honor that case recognize that very recent case recognize that as of two thousand and fifteen the united states supreme court has not held that strickland applies to non capital sentencing proceedings it is never applied strickland in a non capital context and for that reason  l cannot show an unreasonable application of strickland under ed but in this case because there's no united states supreme court precedent indicating that strictly even applies in the sentencing context so the state asserts that this case  answers the question of whether whether ask about can show unreasonable application under and that's one of our cases yes raised in opposing counsel statements and i think the in the sentencing transcript you can see the a judge cops they did make statements that of a psychosexual evaluation are harmful it's an in thing significantly she credited the psychosexual evaluation statement that mr escobar was not amenable to treatment as opposed to his statement in court that he didn't really understand what was going on in the psychosexual and yes he was a medical treatment and was willing to do anything the court ordered and the court did talk about his failure to fully answer questions and she says i don't buy the idea that he was just on comfortable he was aware that this was an important valuation and i think she did use this lack of cooperation against him as an aggravating factor and if you compare the psycho sexual evaluation to the trial transcript and here's what's been the pre sentence report there is information that in that's like a factual evaluation that is much more aggravating than his way in any of the other engel the evaluator called into question doubted that and then he was in the medical the treatment which i think played a significant factor in the sentencing court's ultimate determination that he should get a fifteen year fixed sentence because he was not amenable to treatment and now the post convention court's findings i believe are very similar to the hurls case where she is essentially testifying through her opinion where she's not been able to be really cross examined she's saying no this is what really happened and i'm drawing on my own personal information that i had as the sentencing judge and that is not an appropriate fact finding process and hurls the remedy was to remount to the federal court for further proceedings sentence i think it can be considered well strictly and is an objective test but here you have a sentencing which obviously does deal with what was going through the sentencing judge's mind the problem with the post intimation decision is that she's not being tested by cross examination and he just saying this is what happened this isn't this isn't an approach nearly fact this is a decision maker this tell you why she made a decision we don't ordinarily theatrics that is something that we take and put them on a witness stand cross examine them we we don't but we take for granted judges are going to tell the truth about why they did what they did is there district judge's findings we should have the district judge testify under oath subject cross only where the district is is fighting personal her own personal beliefs and the first  done their work why would this be different what's different here is that i think what she's saying and post conviction is opposed to what she said in that sentence there is some doubt there that when you look at the sentencing transcript it appears this was a significant road and cross examine him it seems really novel to me i've never seen it done i can i say that decision that you cited that was done yes and they get i think it should be limited to situations where the judge just citing her own personal experience in making the decision rather than relying on these are the facts and in the record and i'm relying on on testimony that was presented which is very typical in a district court case and i don't want to use up any more