ineffective assistance of counsel when his trial attorney informed him that he had no defense to the serious felony and strike allegations that were based upon second degree burglary like the punishment this fellow did not receive an enhanced punishment for what he did after he did it instead the judge who him after the burglaries had an option he very make it a misdemeanor send him to the you thought already or make it a felony you send him to prison and in order to make it a misdemeanor he had to say so and he didn't a punishment whether they increase the punishment that he was likely he would receive it i don't see how they did that here because the time he committed the crime he could he was eligible for sentenced up to fifteen years in state prison and he got five in the offense itself is not changed obviously in florida the presumptive guidelines were changed after the offense was committed and even though the defendant in that case could asserted to the youth authority i submit that statute has obvious policy considerations that benefit not only the offender but society as well you know to to keep youthful offenders out of the story to it well that's the case your honor that's true but under the that same policy even though the crime is a felony still put him with the youth authority that's true that's true to the court could not have withheld misdemeanor status once it made the decision to commit mr davis or to the youth authority that decision increase the quantum of punishment here and it increased  an indeterminate period of commitment in the youth authority by two years that clearly falls i think under category three there is something i'm missing here ok i may be asking the same question that judge how gas and just in different words it's going by me the old law says when the court commits the defendant to the youth authority it's a misdemeanor the new law says when the court upon committing the defendant to the youth authority designates the offense to be a misdemeanor it's a misdemeanor right that's right i got that right so he has to do so it looks to me a in the old days if the judge thinks it ought to be a felony it can't send the person to the youth authority have to send him to prison sometimes the judge is going to think it ought to be a felony th is a bad kid for prisons to reform so that he's got a dilemma either let the kid off too lightly in terms of the conviction or ass and the kid to a prison that's too tough for me and the new law gives the judge the option of sending them to you thought already because that's a better environment form and still making it a misdemeanor or felony i can see where it's any harsher well it's harsher because again it extends the period of maximum confinement by a period of two years the indefinite period and that was the intent behind the law you know it was i guess that's the argument that i'm missing not provide the court with discretion to withhold misdemeanor status when it imposed a youth authority commitment via seven hundred thirty one point five it had no discretion to do that but it had discretion whether to impose whether to send the kids yes yes it did it did have authority to decide that but the the new ball and under the old law pursuant to california supreme court authority commitment to the youth authority on a wildly refence automatically convert the crime to a misdemeanor that was clearly established law and afterwards of course the court had to two i believe under seventeen thirty one point five the court still kind of imposed a youth authority commitment for a youthful offender for a felony i believe so  so that's why they changed the law they changed the law because the california supreme court in only of us found it was a violation of equal protection to impose a lengthier you know commitment period upon these individuals then would have been imposed upon adults and nationally within a week of the decision and only lost the legislature was pushing this new legislation under the case cited the judge does not use the magic words required by the statute but the statute is not yet in effect so the magic words requirement cannot be imposed on that sentence given and yes that's true i mean i think doing clearly represents a more egregious violation facto clause but i still believe it's controlling and the other thing i would say is this under strickland and williams versus taylor you know you have a situation for example in williams where you have a capital case and the us supreme court found a violation of strickland on the grounds that counsel failed to present mitigating evidence defense of a death sentence and here we have the only conceivable defense here to a prison term of thirty years to life which counsel failed to present and the question is you know and williams i don't believe the supreme court ever said definitively that the failure of the trial attorney compelled the conclusion that the result would have been different but it created a reasonable probability it made the proceedings unreliable and it failed the task of reliable proceedings with you know an ex post facto violation it doesn't pass muster under the test for what constitutes next post facto violation as we can tell you that our brief and i maintain again this morning the amendment to seventeenth he was strictly procedural in nature it did not increase the punishment by that i mean the range of available punishments to the judge was the same as it would have been under the  previous edition or version of seventeen b which took effect back in one nine hundred fifty nine the only thing that seventeen b really did was it gave the trial judge some additional discretion in where to have the offender incarcerated we take a look at section seventeen b as i said it only changed under the seventy sixth amendment committed the offender to the youth authority by operation of law that designated the offense as a misdemeanor post amendment and so in seventy six if the judge committed the offender to the youth authority he or she simply had to do one additional step and that was to check a box if you will saying i'm designating this offense as a misdemeanor i guess the opposing counsel i would argue that saf is what makes the ex post facto no your honor because that's not the test for ex post facto when looking for an ex post facto violation we look to see whether or not the punishment was made manifesting the judge's discretion that changed it would be different if the judge had had the if the amendment somehow affected the judge's ability to decide whether or not send somebody to designate the offense as a misdemeanor but that's not what happened here who simply the procedural technical vehicle for for exercising that discretion the judge had to take one step he did not remove any of that discretion from the judge at that discretion removed then i think we would be looking at an ex post had the effect of increasing his time and kept  authority from three years to five years no sir it did not that's counsel argument is up works on the flawed premise that it would be a misdemeanor by operation of law under under so he gets two more years well no your honor it's that sort of misleading way of reading what is what actually happens if the judge in this case has know but how do we know that he wouldn't have sent him there right there's nothing in the worth or there's nothing in the record that says that that the judge contemplated this as being a misdemeanor offense and that is respectfully your honor that is petitioners burton and i hate us corpus action to prove all elements of this case joy understand it's right that where we're debating is is about which decision comes first if the judge first decides is what this person did bad enough so that i should label it a felony or is that something minor enough so that i should label it a misdemeanor then there's no ex post facto way of looking at the statute labels with a felony or misdemeanor and then he sentences as appropriate to prison or the california youth authority and the term had depends on a decision the judges made between felony history but if what the judge decides first is where does this person belong you th or prison i think this person has to be in the you thought party under the old system that made it mr meaner three year max under the new system the judge can still call it a felony five year max why i understand how the system works i don't if your honor is asking whether or not an ex post facto violation i'm not asking about the constitution right now i'm asking about how the california system works and works now we're of the old system under the under the old and then if the judge had sentenced him to the youth authority and by operation of law it would have turned that wobbler into a misdemeanor and all we're talking about rights i mean or in fact felony sentence as well because of the way it was after all we've if the judge thinks this kid needs more than a year he can send them to the youth off party but then they more than a year but by virtue of under the old statute by virtue of sending him to the use of authority that automatically said that that the crime was a misdemeanor in the in the judge's estimation you know owing only talking about our places of confinement but that does not go to the range of the punishment which is the critical factor in an ex post facto analysis you're following up on one of  approaches if the judge thinks the most important thing is where there's a fan and serves his time either youth authority or in a prison he's but i also think it should be a felony so i'm not going to sign that document and your honor the scenario that you just pose i don't see how anybody can can say with a straight face that that's a more onerous punishment which and i've got a kid in front of me dead kid but he's thin small little a feminine looking they're going to run them up in prison so number one i decide he's going to you th party where they're not also big and tough and then all the side from there so i sent him to you thought already and it really didn't matter what he did at this point it's a misdemeanor it's kept if if i feel like you can survive in prison and now under the new system if i've made the same decision he can't survive in prison i'm sending him to youth already i can still bump him up to a felony so i guess in that sense that must be what appellants counsels talking about that it's harsher a felony is a is considered a more serious crime a short on or it is but what the what the court is doing is it's taking sort of personal considerations about this particular offender that the judge might see in terms of the offenders there's a physical stature she says is something outside of the realm of whether or not the law is ex post facto the problem when you're thinking about real time just as have it's always personal yes always an individualized sentencing and i'm thinking suppose i had the the same kid and i and instead of thinking first of all small then feminine and also with a mouth on i'm sure to get in trouble so i need to go to you thought the first thing i think about is this kid is doing home invasion entries into houses where he knows people will be there he's a real desperado this has got to be a felony it's very dangerous get and so i decide felony then i decide small then feminine looking mouth on him he's going to be a wise guy and tick people off going to get in trouble then i send him to california youth authority then the statute is not harsher it's more lenient because the felony decision preceded the custody decision and it just seems like it depends on how the judge looks at the individual cases which comes first whether the statute makes it harsher or softer whether the wear comes first or that what it is comes first that it's a difficult decision i would not deny or honor but that's part of the responsibility that comes with being a judge or a decision maker regardless of what one's profession happens to be there is there any is there any problem that is there any authority that tells us definitively had  analyze the ex post facto in that sort of situation in that particular situation here i am not familiar of any case that specifically deals with how the judge is supposed to decide in taking all honor that whether or not there was a going there a next post facto plain that that reasonable counsel should have pursued and would have prevailed on i gathered it just just from my perspective just the stuff i gather you're arguing the state's argument is that the time he committed this crime mr douglas or committed this crime if one would have looked at this but the punishment on the books could be at that time he would have understood that he could have been sentenced either was a felony or the misdemeanor is a misdemeanor correct and that didn't change after the change in the law is that correct or so therefore if you if you're to go literally kind of your argument exactly but indeed as it turns out we know that the judges discretionary authority changed significantly