raise the b b gun defense to the firearm element of armed robbery with a firearm in april twenty fourth two thousand and fourteen letter just seven months after the guilty plea and this is after that he had a possible bets and here he did have a possible lives the state's argument on appeal and the trial court's ruling below seem to rely on an incorrect standard when analyzing prejudice problem but strictly  the state at the evidence rehearing just admitted to victim's testimonies from that trial to support that or to argue that there was sufficient evidence to convict but those two victims testimonies are just baby descriptions of the object that mr mclendon health during the offense they were to put there was no conclusive evidence that it definitely was a firearm just says that the object was shiny car a cold metal and it was also covered by a bandana which mr mcclelland said to the police that he covered it with but then on to hide the letter so that the victims with think it was a real gun again supporting his b b going to fence importantly those referencing bullets but there's no foundation or no way to attack a personal knowledge of what actually was in this for me but it's handy at the same time mr price testimony that he didn't get out of a car because of a gun does not  prove or disprove that the object was was not a firearm and finally the court relied on a video which was not this record a work the court concluded that it looked like a firearm but that's the point of the element which would reduce his sentence greatly if he were acquitted the trial court even recognized that he had a possible defense what it said that he could have been found not guilty of quote from ph thirty seven consistent with his police statement which he gave just five days after the offense when he turned himself in and mentioned that he carried the jury in the offense but as i mentioned mr mckinnon has not had an opportunity to test the state's evidence thousand fourteen to seven months after the guilty plea and seven months before his testimony at the evidentiary hearing shows that he was operating under the fundamental and the incorrect error of law when you have a question right at the time the bice's proper sentence state concedes that he was not properly advice as to what the exact minimum sentence was in this instance it was twenty one years not twenty two as counseled by some however we feel that that erroneous advice and significant would have had no application or effect and this particular defendant lead in fact this defendant was somewhat sophisticated in the criminal procedures he was advised where minus by the trial court that it was twenty telling i think that this gentleman would have received us very substantial sentence had he gone to trial and lost and i think this defendant knew it in fact i don't believe this issue is actually string asli argued by defended on appeal but nevertheless it's raised i think the primary issues want to prove here they're suggesting that he was defended and properly advised as to whether or not a b b gun was a firearm for purposes of the it has to stash however we had a hearing this of his sentence however there is this issue is going to be rapid with problems if they attempted to go forward with it basically they had no evidence in support of it other than the self serving testimony of this defend stand and make this argument obviously he's considering the fact that he was the one to rob the store so that removes it takes great risk taking this to trial admitting that he was the one robbing the store but suggesting that this was a b had a gun he testified that he was attempting i think to get a gun that day time not a p t gun and actual weapon of course the trial court was aware of all this because it sat through that trial as well so the evidence that the not before the trial court such as mr wells testimony or text messages that bullets were referenced or mr bragg's supposed testimony that tried to get a gun earlier that day we have no idea the context for those statements