it please the court counsel the reason we're here today is because the state having been given two opportunities to show that they exercised due diligence to obtain timely d n a results failed to do so is our position in this case that the important moments of proof if you will was at the time the state violence it six motions for continuances for d n a results that they filed boilerplate motions that simply actually literally allege that they had exercised due diligence to obtain results and a those hearings they offered no facts that moved back up the legal conclusions of those motions in an extraordinary development they were given a second opportunity at the evidentiary hearing in this case to somehow bring out more facts that show due diligence and its opposition that to the extent this court considers what happened at that third stage evidentiary hearing post conviction hearing actually show that the only time the only moment at which the state actor size the kind of due diligence that satisfies one of three dash five was after the expiration of the speedy trial period even if you account for the extra time that accrued as a result of mr macintosh's exceeding to the state's first motion for a continuance let me ask you  put on notice that due diligence is needs to be bolstered proved that there's no specific objection what is the state supposed to do when defendant i will say that it was total acquiescence but it's more ok this is kind of we understand that this takes time everybody knows it's a pain yet because the labs are behind in this case we find out later that the labs switched its technology or some internal process makes it take longer doesn't that deprive the state of the opportunity and i'm understand i understand that you can say well yeah but he should've made a specific objection but there's no objections made that drives the state of the opportunity to say well yeah i actually have been in regular phone conversations i've done this i've done this i'm relying on my experience to understand that this is it this case isn't being very it's just that there is this process and that's why the statute provides for this it's a shame that it has to it ought to be more probable than any very long question but isn't it the responsibility of somebody to raise perhaps even a trial judge well i think your honor but the way i see this case the lawyers in this case and i'm including the trial judge as as a as a lawyer they were all operating as if in a sense this was an automatic continuance pelts offender schmidt who was the attorney who represented mr mcintosh before said basically got up and said i have jacked and you know i believe that the statute is clear enough when when the statute says as an exception to the speedy trial act you must show due diligence there is something more that the warrior of the further state should have shown you are correct the judge should have caught this and asked for more and in a sense a grief that yes the of the public defender should have made specific objections on the other hand here's mr mackintosh the only non lawyer in this case you know like how only like jeremiah trying to get his speedy trial rights vindicated filing a pro se motion for this charge that the judge could never you know all along mr mackintosh has maintained that he and he testified as much at the third stage everett entreat hearing that he felt his speedy trial rights been violated and his lawyer wasn't doing what he wanted him to do so long answer to a long question your honor the fact is here i think the lawyers screwed up and i think the way this was treated with that it's an automatic continuance unless and this is speculation maybe after the days hearings they sat in the judge's chambers and discussed this but none the less of the case all because they say it is automatic unless the state's representation that they have been acting with due diligence is challenge well and that's part of our i mean that's the problem with this case your honor if they have to allege due diligence they have to evidence of due diligence unless it's chairman i know what happened here i disagree your honor i think and allegation that i am exercising due diligence is a legal conclusion and unless there's a factual basis by which a judge can determine that due diligence was in fact exercised i don't believe that sufficient and that's why i think going to your question your honor the judge here dropped the ball if i stood we've all been in court we've all argued motions the standard here is so low had she said i talked to eris while at the at the lab and he told me this case is on the a s a p list which i believe is language this quote this court quoted from another case in it's colson decision but we're one hundred thirty third on the a s a p list that's what the statute for this statute doesn't require the state to get the results it requires them to try and to convince by factual allegations that they have tried and respectfully i don't think picking up the phone and saying i'm my results ready no they're not i don't think that's sufficient one more sentence would have su listen it's what she did after the expiration of the speedy trial period i believe it was it may when she talked to the crime lab and said look this guy's you know he's he's asserting his speedy trial rights can we get the lad out on these mr schmidt did not object to the the first motion for continuance and that's chargeable to him none of that none of the d n a results in this in this case came back before the expiration of the speedy trial period and had they said at the december of hand motion we've submitted these results the state crime lab tells me there's x number of cases in front of us and they are not going to do it they can't do it they won't do it whatever she would have said but i told them we need it fast that's it i wouldn't be here arguing this case today but this is this is pro forma start to finish on the part of the lawyers in th trial lawyers here we have a state attorney who is clearly in some position in her office that she's been entrusted to try d n a cases and a public defender i think he said he's been practicing fifteen years or something like that and he gets up on the stand and he again he offers a conclusion there's no testimony from schmidt that says this is why i believe she was exercising due diligence what he  believe she was exercising due diligence and in fact his internal whose name i really like to know because i think the appellate record producer filed a drafted a memorandum that almost mirrors our briefs and we wrote our brief without even knowing that this this memorandum had been written she concluded out of his she said out of curiosity and you know because of this issue i had her research and she came to the right conclusion and that is do his steve trial right was violated by the pro forma way these motions ramble and as i said this is a minimal burden on on an attorney is  that well durham says that you have to have some sort of allegation that you've done something to expedite and battles this well goes into far more detail and i know this court rejected battles and colson but it's also our position that something like battles needs to come from this court to tell the boyers that this is how you do it that it's not just a matter of filing a motion with a legal conclusion it's not just a matter of getting up and repeating your legal conclusion that you have to give the court the facts that will allow up number one it was a essay weber's duty to communicate that so that's our position but this farce pritchard's testimony goes what's really interesting to me about it is that in a general timeframe of six to nine months she considers delivering results in eight months to be accepted dated and for my position that absolutely rebuts any suggestion of due diligence especially because they turned around those tests in thirty five days after webber spoke to preach for it and said but i don't i don't be more specific about how that rebuts just that it took so long it generally takes them six to during this time period because our system is changed or our technology has changed or using the noose some kind of new system so the implication was it may even  pritchard's testimony there's nothing in there that says she communicated that fact to weber and the record is clear by the way if we're talking about the the evidentiary hearing here weber's testimony is that there's nowhere in there that for said there's a delay because of the because though this whatever that change has to yeah so had that testimony been given at one of those hearings again i wouldn't be here but if you're looking at the evidence  said i talk to preach for ten times and she told me to do testing is delaying us the new testing is delaying us i don't know i don't know but as i read this record it shows that guess relatively given what had occurred before me maybe it is there you know if there isn't there's nothing in the record at the every day tree hearing that suggests these tests could not have been delivered earlier and i don't think anything preach for  set to the extent that it's relevant and i don't believe it's relevant because the to the extent it's relevant it it doesn't help established due diligence but i don't believe it's relevant because the issue here is what happened at the hearings on the motions and what was alleged in the motions and it's a low pleading standard and it's a very very low standard of bird it's a prima fashioned case based on allegations you don't even need evidence so that's our position your honour's be the issue here is what happened at those hearings it wasn't sufficient and the remedy here is a finding of ineffective assistance finding that the judge erred in denying the post conviction petition and been necessary relief that flows from that its base hitting mr mackintoshes action let me ask you a question and i think you've made it clear  limit but even if we don't win then you don't think the evidence is such that the state should prevail but let's assume for the moment that we said to you from the band that we need to consider all the up so if we were to say that is there anything else that you want to say about the have an injury hearing or the burton because isn't the burton different in the sense of this is post conviction i have to show or one could phrase it this way perhaps i need to show that there wasn't due diligence throw them having to show that there  was i think to the extent you consider the evidentiary hearing and you're correct or musician is that she who want to call it it establishes is that there was not due diligence that the due diligence that i should say  was not timely due diligence the due diligence that occurred here on may twenty fourth was which is the time that weber said she told the crime lab to speed up the testing that something like two hundred and around two hundred six days after mr mackintosh had been arrested that's forty something days after even the extend its trial period that the defense is i didn't do it it's not my d n a it's going to come back negative apparently that was the strategy well that's what i can discern from the record that's what  think i trust this state's attorney she's probably doing whatever she's supposed to i know what a pain it is for the crime lab besides we're hoping it's going to come back  hundred sixty third day i can win another way this is a hit handed him i did a better defense that you know the speedy trial had been violated speedy trial acted been violated so maybe perhaps i'm looking at it your defense blinders by i can't imagine not i just don't i don't see how deep the consideration it were that the case then don't have jack if you're going to object to these motions then filed a motion we has so many different requests for continues because thirty days is just simply not enough to try to get this kind of if ration is in the normal sort of circu as the expert testified here the only reason they got the results as fast as they did here was because of pressure from the prosecutor and based on that testimony alone the not failure to zero as far as that goes the there was testimony at the there's tests where bush conviction hearing regarding this question of why did you and risking the twenty five year cap so i think that answers a question regarding how the difference between a motion to withdraw the plea in the motion the rush to judgment and being deprived of the chance to raise the issue it was a decision on the part of the defendant not to withdraw his guilty plea and to say that post trial or sentencing your term client is wrong it's his choice whether he wants to withdraw the plea and when he tells you he does not want to withdraw that the there is no ineffective assistance and following that  are no further questions i submit the trial court's determination in this case regarding the question the speedy trial and the effectiveness of trial and post trial counsel regardless i'd like to first touch on this idea of the motion to motion in arrest of judgment as a substitute for a motion to withdraw guilty plea our argument was not that counsel should file should have he did not say that jackson filed this motion rather than withdrawing the guilty plea at the client's request completely ignores the fact that he did it based on his misapprehension of the law the motion and the rest of judgement as your honour's you know is a motion that's very limited in what it attacks and even if you say well the judge considered it as if it were a motion to withdraw the guilty plea there would have been and go back to square one right i would be here arguing a very different case your honor because then i'd be saying that if you if you withdraw the guilty plea on the basis argued in as it you would have been set for trial where he could have been got natural life as opposed to his twenty five year cap that might be oh i assure you a legitimate issue for the for the  consideration and doesn't that lend credence to his plan that my friends tell me i don't care what you do but i do not want to withdraw what well you know i don't think that's really the only consideration here that number one filing a motion that offers no relief to satisfy your client is one thing but failing to preserve the issues for appeal is entirely another and that's the thrust of our argument whatever would have happened he squandered the direct appeal