because here he recognized the counsel's performance was deficient and he put that in the printer motion but he'll actually he would have been acquitted so he could proceed bennett he didn't have an attorney at that time well he never said that he it would have gone to trial or he might have gone to trial and what he's saying is that he might have accepted a plea bargain so where he could not have made a decision the kind of his right to make a decision whether to plead guilty or well yeah i think there are different ways that it could have been free you know like you mentioned you know somebody could say that i would be a fool not to take it and then indicate that they would have taken it through that they may have taken  seems to me that it was raised on direct appeal the titian rehearing one counsel tried to argue that trial counsel didn't effectively advise your client and that because of that he did take but please well but the issue was never actually decided by those who are ok but i'm not talking about decided i'm asking about was the issue grades not decided i agree with you that it was not deciding because the majority said hey that's not what you even say that's that the angle from which you came but my point is it appears that it was great yet counsel are trying to raise it but when it was counsel yes there's no way of knowing and you know like it's not really the great hearing or the crank call you know i wouldn't read much is based solely on what was written there was no discussion there was no power station we don't know what transpired right but it does it mean it was but there were no facts supporting it so there is not a there was no basically basis for it and the direct appeal record noel and would forfeit the merits of the claim the point is that the merits of this claim were not in the ineffective assistance of counsel it was in a quite inadequate inquiry of ineffective assistance by the trial court that's exactly how it was framed in direct appeal i did direct appeal and they are just like here the appellate defender is attempting to reframe it into an ineffective assistance argument instead of whether the truck or conducted an adequate inquiry into defendant's allegations assistance of counsel regarding his attorneys providing of misinformation regarding the percentage of and sentence he would serve this was precisely the issue on direct appeal we have to take into account we have to step into the trial court shoes when because defendants raising the same claim here the trick the way the phrases it again the trial court is not obligated to take definitive words especially when in his affidavit he says quote this issue was brought up on direct appeal in your honor dissented the trial court is not obligated to then reconstruct to defend his argument into one of ineffective assistance of counsel especially when definit says in his own words that this our issue was brought up in direct raised in his cross a critical motion and on direct appeal this is what this this court is in in the direct appeal this is what the court discussed was whether the rocor adequately percent instead of eighty five percent and quote that would make a big difference in time i served in other words it defendant doesn't even mention a plea agreement or any kind of negotiations nor does the record suggest any plea negotiations in this case if the evidence seemed to be pretty overwhelming based on the factual basis but now the claim is had i known what i would have to serve eighty five percent i would have taken the key agreement is that  again putting putting yourself in the trial court shoes reading him it was a lengthy process petition this wasn't the only claim brought up in that when reading this claim this one paragraph claim it reads exactly the same  as what was raised on direct appeal and then confirmed in his affidavit which stated that this issue was a product on direct appeal the trial court did not air in taking definitive word that this was the same issue well it is not you know it is the same issue correct the trouble is that is pro se motion defend it said nothing about plea negotiations he didn't mention him so yeah i mean as far as again as far as the trial court's concerned it presumably is what the trial court did hear presumably i mean again if in a says you might have taken a plea bargain we have no nothing in the record suggests that any favorable plea negotiations even happened and i guess the trial court or at least the look at the pleadings that a defendant makes in a pro se petition and that's why we don't even get to the effect of the merits of the ineffective assistance of counsel argument so the state doesn't forfeit that the merits of the ineffective assistance argument the statists simply maintaining that we don't get to the merits here because this was as as obvious of a race judicata as the trial court could have gotten as far as this issue is concerned you know well yeah and i where would we be outlawed i mean that would be a more arguable is ition or defend against the and the ineffective assistance threshold here is that it's arguable that there's a reasonable probably reasonable probability that if in it was prejudice but here defendant like like your understatement pointed out defendant doesn't doesn't even claim that he would have taken this is simply a moved it to the nd stage maybe i think that would be an arguable arguable claim that it specially if the defendants plead specific facts that there was an actual plea negotiation on the table which again the record is completely devoid of and again the factual basis seems like it was a pretty open and shut case yes it is and as as far as the truck or in the truck hors was and like i said like to trying to stated that the defendant has the burden of showing why this was not raised on direct appeal here there's no there's no new facts there's no there's nothing that was  needed needed to be shown this issue could have been raised on direct appeal and wasn't assuming this it was a new issue assuming this is ineffective assistance of counsel and not just an inadequate inquiry by the trial court definit could have rais issue one direct appeal and didn't and provides no reason in this petition or that's why the state doesn't get into the merits of the ineffective assistance claim because that is not the issue the defendant raised in his petition as the issue that counsel raises on appeal for understandable reasons but that's not the issue that defendant raised in his because it would be fundamentally unfair it particularly in this case to do so because it's clear that you recognize the problem he's trying to have a claim heard in the report hearing it was decided i'm just based on the video recording of him in the back of the car saying you know don't don't find a banner in then counsel argued before the jury that the banner in england refers to a sausage like no jury is going