court my name is truly on john's and i represent javier luna and my recent three issues in my opening brief but i hope primarily be discussing the first issue although of course answer any questions the court has no meaning issues terry manslaughter instruction is warranted where there is some evidence however slight to support giving instruction here there was some evidence that mr le acted recklessly when he after deliberately while disregarding the purpose of his conduct in response to a perceived threat on his life it was reckless for mr luna to turn while holding a knife and stab the person behind him who he saw as a shadow approaching with a bottle and threatening manner after hearing someone yell watch out without without first assessing the situation to see if it'd actually call for such   and initially there was a conflict between the two roommates who lived at the apartment mariel and daniel was of robots haitian and daniel got a knife from his room record yes well he once he had returned with a knife dana had been put in his room by that time but the defendant felt that there was no ongoing threat and he saw a shadow lurching over him from behind with a bottle or weapon as the defendant perceived it in his hand raised and then someone yelled watch out they defendant turnt because he was scared defendants evidence or testimony to be credible in finding for second degree murder rather than first degree murder they found that there was mitigating circumstances in that his unreasonable belief that this force was justified  and argument is that if they were given a nother very crucial third option which is discussed in both robinson and upton as being very crucial for the jury to have this option where there is some evidence of ness that they perhaps would have found that this was reckless conduct rather than unreasonable self defense and although the state does argue that the involuntary manslaughter instruction was not wanted here because the defendant argued self defense a trial under both whiter and robinson self defense and involuntary manslaughter are not mutually exclusive this is because in defending yes they were both first degree and second degree and they found the mitigating circumstance did did exist with the a reasonable  aggravating factor in that the court did not merely mention as the state argues that alfredo's death thinkin in deciding the sentence he actually said well one aggravating factor is serious bodily harm and here the victim has died and i'm taking that into account and courts have found that where i'd take quotes on the record has said that th sentencing court noted that the defendant's conduct both threatened and cause serious harm to the victim and it was improper to consider that because the end result of the defendant's contacts in a murder case is always going to be death and so and the the legislature you know is assumed to have taken that into account in determining the statutory ranges for the the different crimes so it's improper for the  court to to include that or to weigh that additional aggravating factor that's already inherent in that fat in the offense rather there were some there were some yes but but again where the quote considers the mentions a factor on the record in handing down the sentence it cannot be presumed that the  improper factor didn't have a role in the sentence especially here where they did the court did give the maximum sentence where here the defendant had no criminal record get served in the military in mexico he was very young at the time he's only twenty three at the time of the offense and he did say he had no intent to kill he only wanted to scare the person he felt this threat and he expressed extreme  did receive the maximum sentence in light of these very significant mitigating factors including his lack of entire lack of clue criminal history which is one of the most significant investigating factors  and again where the court has said on the record that it's considering the victim status when murder was the offense we can't presume that that didn't play a significant role in the court's decision if there are no other questions that the judge consider the proper factors when making the sentence and and here was not clear that the judge should not consider the proper factors behavior i mean he continually during his testimony indicated that he did that because he was afraid for his life he was a saying well i just accidentally turn around in this one night you say i i saw shadow behind me a bottle i was afraid for my life and he said  issue we would argue that the defendant's condition should be further as that issue as to the sentencing issue on whether the court considered improper or aggravating factor  we don't know how much the court's improper factor considering all the facts in this case that's a tiny different we should be an aggravation self defense and one of the reason and again the state said well you know over and over and over during closing the state said you know the events are good self defense but in this case after the involuntary manslaughter instruction was tonight the defense had no choice but to to focus on self defense you know to either play at war or mitigate to second degree murder and self defense and involuntary manslaughter  not mutually exclusive reckless conduct does include a conscious disregard of risk and the state mentioned in self defense it is an intentional act recklessness first knife and returned and then run auto his cousin to get away however he's the only person that testified that that happened and no third knife was ever discovered on the scene after the police did their search and the defendant did tell the officers in the in his initial statements although he listed several reasons he did say that he only meant to scare the person and that he had no intent to kill and one of the officers did testify to that that and and the court did well as they were as the court was listing out some of the other aggravating factors after initially mentioning this an improper factor that his death at the beginning of the sentenc saying once again the court mentioned it when you was listening when she was listening the operating factors so there is no way for us to know how much emphasis was placed on that so for these reasons we believe that this case should be remand