any this appeal is from the denial of mr gambian these post conviction petition after a rd stage hearing and the primary issue to be resolved by this court is whether the circuit court's denial of the petition was manifest erroneous so just by way of a brief background mr gambian it was initially charged with four counts a predatory criminal sexual assault of a child one count of aggravated criminal sexual abuse and one count of child pornography before his st trial the state extended an offer to mr gandy on eight to enter a blind plea to a class one felony with the sentencing range of four to fifteen years mr gambia alleged in his post conviction petition that his trial attorneys did not tell him before he rejected the offer or that he was subject to mandatory consecutive sentencing on the four class act felonies with which he was charged and he allege that had he been told he would subject to mandatory consecutive sentencing he would have accepted the state's offer ultimately mr gambian win was tried twice his st trial was reversed by this court on direct appeal after his nd trial he was ultimately sons to a term of thirty four years obviously a term of imprisonment much longer than the highest sentence he could have received under the terms of the state's clear offer here the circuit court denied the petition after a rd stage hearing making two findings that are before d this court one is that mr gambino needs trial attorneys credibly testified that they told him that he was subject to mandatory consecutive sentencing turning st to the circuit court's ruling that mr gambians attorneys told him that he was subject to mandatory consecutive sentencing this case is unique in that mr gambians attorneys documented the fact that they gave him the wrong memo documenting the advice that he claimed he gave mr bambi on it with regard to the plea and mr howard stern at the rd stage hearing testified that he drafted the memo with precision to memorialize exactly what it was he told m about the plea in fact he testified that the purpose for drafting a memo was to document the advice he gave to mr graham bionics because he felt that mr gambian he should have accepted the state's offer but the memo shows brief so even if you accept that this memo shows what mr gambian it was told it shows that he was given the wrong advice he was not told that he was subject to mandatory consecutive sentencing for each conviction of  felony rather he was told that consecutive sentencing was a possibility when the circuit court issue just hurling it suggested that the difference between would or could was a matter of semantics but that ruling is manifestly incorrect wooding could do not have the same technical meaning could is used to indicate a possibility so when an attorney says that if you could be subject to consecutive sentencing attorneys telling you that you might be subject to consecutive sentencing not that consecutive sentencing is mandatory and this is the starting point for mr gambling is argument that the circuit court's ruling was against the manifest weight of the evidence even if you credit that memo the memo shows that the wrong advice was given to mr graham beyond me which in turn mandates the conclusion that his attorneys performance in connection with the plea deal was deficient the circuit court's ruling that mr attorneys credibly testified that they told him he was subject to mandatory consecutive sentencing cannot be sustained sustained based on the other evidence that was introduced at the hearing  he testified that he could not remember trying to obtain a resolution to the case that involved a term of probation but there was objective evidence introduced over and over again that showed that in fact he had opportunity to plead to a probation bill offense yet there's a mitigation proposal that was entered into evidence that showed that he he made that exact request i think probably one of the most telling things about mr samuels credibility is you know during direct examination he initially testified that he did not give mr gambian any advice as to whether he should accept the state's offer but then on cross examination he did a it with several more counts of child pornography that the jury was going to see and there was no way under the sun that mr dan bionic would be acquitted the problem with his vivid recall and that is that the superseding indictment was not issued and till after this plea offer was rejected and moreover there was a motion to sever the pornography counts and the court did not rule that or deny that motion and ruled that the jury would see all of that evidence until march of two thousand and ten which again is long after the plea deal was rejected so in other words mr samuels testimony on this point was demonstrably false and contradicted by the record you know mr however since testimony was also problematic for several reasons you know st and foremost he kept insisting that the memo shows that he told mr van beyond that he is subject to mandatory consecutive sentencing when of course that's that's not what the memo says but then he also testified or gave conflicting testimony with m testimony on how this memo came to be further undermines their credibility but i think one of the most important things here is you know if you look at this case if you look at the strength of the evidence and you look at the offer that was extended to the defendant this was a very good offer and i think all the parties agreed to that at the rd stage hearing very favorable for the defendant and he rejected it and any defense attorney is going to contemporaneously document the fact that they gave the defendant the advice that they should receive accept the offer listing out the reasons why they gave that advice and the fact that the defendant nevertheless rejected the offer  it's kind of like if a patient at a hospital leaves against medical advice that's something that's documented all over their chart here none of neither mr howe verson nor mr samuels documented the fact contemporaneously that  they gave mr gambian advice that he should accept this offer and that he rejected it despite their advice in fact mr samuel had handwritten notes from the meeting with m which this plea offer was discussed and there's nothing in his notes about the advice mr gambian it was given so you know it's difficult in this kind of forum to point out all the ways in which their testimony just either was implausible didn't make sense was inconsistent but if you really look at it there the great weight of the evidence here is that their testimony was simply not credible very briefly as to the  convicted and he told his nd attorney his subsequent attorney that he was willing to accept an offer of twenty years which was even longer than the maximum term of incarceration he would have received pursuant to the state's prior offer and that's his rejection of the offer the st time around and his willingness to accept an offer of twenty years was that he learned he was subject to mandatory consecutive sentencing after his st trial the final point we make in our brief  is that here the circuit court judge improperly relied on his own experience as a prosecutor and defense attorney in finding that it was not a hard sell that mr gambian he was under receptive to a disposition that involved prison time as we point out in our brief it was improper for the court to rely on that experience to make a credibility finding because it was untested by cross examination is not subject to the rules of evidence it's not the kind of knowledge that a layperson would possess or that a juror would possess that's common to everyone he was relying on his specific experience and observations having been in the field of criminal defense and then drew a comparison between his prior clients and history and the army and that was i would submit inappropriate so i will rest on that argument lest the court has any questions for me offenses you could be sent to consecutive sentencing could not would for example if you were convicted of two it would be a minimum of six times two is twelve times point eighty five was that the attorney was pointing out a hypothetical in which consecutive sentencing was a possibility not that it was mandatory and so if the court ordered consecutive sentencing this would be the result twelve years  eighty five percent again it's you know if it's not you know words matter and it would be in could have very different meanings in this  counsel saying this is what would happen in your case i think if you look at the context of that part of the memo he is giving an example of what might happen so the memo indicates if it's served at a if they are served consecutively and if you're sentenced to six years on both consecutively then you would serve twelve years that eighty five percent right and you who suggested that the defendant here would have accepted some time in the penitentiary that's your position correct and that's based on after having received thirty four years and been convicted the nd time he was willing to take twenty no your honor to clarify that point so after he was st convicted and his case hung up on appeal when i was reversed by this court when it came back  defendant told d his rd attorney stephen brundage that he was willing to accept a plea offer that involves a tour of incarceration of up to twenty years right but my here's my point isn't it somewhat disingenuous to say you know hey i got convicted the st time i got thirty four years so now i'm willing to take twenty how does that relate back to prior to the st trial where he is adamant that he will not go to jail because the victim's family which is his family want him to get treatment they don't want him to have to go to jail how do we  a that's entirely a product of mr however scent of mr samuels testimony so we you know you have to credit their testimony to make that finding st and foremost and for all the reason that we lay out in our briefs you know the notion here that the defendant is the only one who has an interest in testifying up a certain way is simply not that's not valid no no defense attorney wants to be called ineffective and so when their performance and when their performance is being challenge right but here's michael here's the point of the question is there anything that indicates that prior to the st trial that your client was willing to take time in the penitentiary well i think that would be yes or no and if the i d s went to the record sure so the answer is there's nothing in writing that would  that would point to his willingness to accept time in the penitentiary prior to his rejection of the st plea deal however that's what he testified to at the rd stage hearing and you know i think part of what your honour's question alludes to is this idea that there has to be corroborative evidence of  the defendant's willingness to accept the plea or prejudice i guess you know there has to be corroborative evidence as to the prejudice prong in order for the defendant to prevail one of the things you can look at though is the disparity between the sentence he was facing and what was offered under the terms of the proposed plea and here there's a vast difference between what mr gambian i mean what counsel i agree with you he there's no explanation for why he did not take this off or not except that you know his dad i believe it was who testified that you know there would be a better offer coming down the pike you know sort of at the on the the steps of the courthouse the state will make you a better offer well i think that i mean well you know county that is not influencing the defendant here i think that's you know your honor i think that that's you're fairly alluding to what their mind so it was but the question here is not necessarily why he rejected the offer it's what he would d have done had he received the correct advice so their mindset and our contention is the defendant's mindset would have been completely different had he told look if you're convicted of these four class x felonies for which the evidence is almost overwhelming you are going to add a minimum mandatory leaser twenty four years at eighty five percent what he would have done had he been given that it's vice you know i think part of what we showed at the rd stage was prior to him receiving the discovery and the full indictment no your honor absolutely not ok way after mr gambian had been indicted and after discovery had been exchanged his attorney and there was an ample evidence of this there were e mails that were introduced a rd stage hearing from mr ghaemi on his attorney referencing their efforts to obtain a disposition of probation he submitted samuels denied and could remember doing but absolutely at the last record speaks for the package was there and it was rejected right right so this is this is not happening in a vacuum this is mr dan beyond  relying on what his attorney is telling him about what's reasonable and what he can reasonably expect about an outcome and then counsel what remedy are you asking for i will concede that the the remedy part of this is not clearly spelled out in case law but i think the strongest argument is for mr danby honest convictions to be proposition that the remedy is for the playoffs to be reinstated there has to be a remedy if there is a constitutional violation of this magnitude and i would suggest that that's what it is years which in actuality for some of the offenses with which he was charged was actually sixteen years on the maximum but in any event he was only told that he was subject to six to thirty for the lower courts credibility why not revealing a good novel or we know you're not and that's why we pointed out the myriad ways in which the testimony and the evidence including the objective evidence contradicted what it was the attorneys testified to at the rd stage hearing i would concede that you know it's you know credibility findings are not commonly disturb on review d but that doesn't mean impervious to review and in this is one of those rare cases that falls at the end of the spectrum where look if it were criminal defendant who is contradicted and impeached like these attorneys were impeached there's no way that criminal defendant would ever be deemed credible and yet in this instance these defense attorneys were i mean you have them documenting and again we we don't even concede that what's reflected in the memo it was told but setting that aside you have a memo that was drafted five months after this that reflects that he was given the wrong advice and the absolute absolutely because that memorandum shows that he was told that consecutive sentencing was permissive not mandatory well you know what's in their testimony and i know i thought in the breeze that his father said something to the fact of all you know you know or he was a real estate agent or something and something to be affected yeah but adamant not to take the deal that we're going to get what mr however some testified to so here's the question is do you credit what it is he saying i don't think you should credit what he's saying because the the prosecution the day after this offer was rejected the prosecution state the record that there would be no more negotiations there is no basis other than mr alderson's testimony to believe that that was the defendant and his his father's attitude towards these plea negotiations and again part of your job as an attorney and giving acting competently and effectively is to inform your client of the consequences of rejecting the state offer and here unquestionably that requires them to tell mr danby on me that he subject to mandatory consecutive sentencing because that alters the entire landscape of his decision making if he doesn't know that he's subject to mandatory consecutive sentencing then maybe it's worth it to him to to see if maybe things will change and maybe there will be further negotiations but if he's not given that advice that he's not able to act competently and intelligent intelligently me it doesn't seem unreasonable for the port to deter but the fact is this young man had no intention of taking jail time he wanted probation so that that's based entirely on his attorneys testimony and credibility back to credibility but here's the other thing i will say is that one thing that is not subject credibility that is irrefutable is that after he learned he was subject to mandatory consecutive sentencing he was willing to take an offer of twenty years now i understand that you know he could that could also be construed is the reality of the situation hitting home for him directly but it's also i would argue pretty compelling evidence that contradicts this notion that all he would just never be receptive to any prison time well you know yes because after the case came back from the appellate court they kept saying more you didn't they didn't  o he kept the same lawyers this was not fully fleshed out i don't think at the rd stage hearing so he kept the same attorney for the appeal and there was you know testimony in that regard as to why and in fact that the case was reversed and then after it was reversed for a period of time those attorneys remained on the case until he hired someone else to represent him correct ok ok great thank you so much i have no further question because it goes to his willingness to accept an offer that involves time of the pen and time in the penitentiary is it rebuts this notion that he was so adamant that he would never do any time in the penitentiary which is what his lawyers testified a fact that that's not true he was in fact willing to accept a lengthy prison sentence after he learned that he was subject to consecutive sentencing now that the that happened during the course of you know some back and forth there were there were plea negotiate for the plea negotiations before the nd trial and ultimately the defendant mr graham beyond he didn't think the offer that the state made was strong with those proceedings that kristen can correct me on this if i'm wrong this is french so i think it's a you know the st time at least if i recall the record the st time that wrister samuels and the defendant met with shortly after his arrest in maybe a coffee shop somewhere it was like the july holiday weekend or something and they met and mr gumby and he told mr samuel i believe at least this is what we heard at the hearing that you know this is a misunderstanding i was just wrestling with my cousin nothing sexual after him and besides my family doesn't really want me to have to go through this more or him to go through this they just want me to get treatment and appear mr samuel had done some work because he knew that he that the prospect of hey that's the case you know you're to get probation isn't that when this happened i don't know for sure if it was there was a there was a statement mr spaniels made along the lines of oh this kid will never do any time in prison however the the references to probation and the efforts to get probation were ongoing long mean i think on its face there's ambiguity in that statement but i don't know that it was further fleshed out what anybody or what mr daniels met by making that statement or necessarily how it was received the discovery in this case does not happen on that st weekend after he's arrested does well what i'm what i'm saying is that discovery was certainly tendered by the time that the mitigation proposal was submitted in i think it was march of two thousand  well i think i don't recall that testimony off the top of my head my recollection is that the testimony was mr hubbard was more local he was close to the court house he was familiar with how things work and du page county by virtue of his having been a former prosecutor and to gauge county i don't know that mr samuels ever testified that it was anything along the lines there would be there would have to be proof that he would have accepted the plea for ineffective assistance and we've been talking about that with some depth the nd issue is what have been entered without e trial court will accept it unless there's reason on the record to believe otherwise we're going to do is we're going to start calling judges as witnesses to testify as to whether or not they would have accepted the plea i don't know how that's established unless there's evidence on the record to rebut what i think is a fair presumption which is that an offer in the normal course of events that made by the state and accepted by the defense is is normally the trial court's not going to intervene and not  ccept the plea i certainly think based on my own experience that's the case i'm not saying that it never happens but by and large the less there is a reason to believe on the face of the record that the court would not have accepted the plea and i suppose that if that's the ruling then that dramatically changes how these hearings are conducted and from here on out we'll have to call sitting judges to testify is that well you know i would accepted the plea i wouldn't have for these reasons but my contention is that that is there if that requirement is there if there is some indication on the record that for some reason if a four to conference had in fact occurred yes now i'm sure based upon your argument you're familiar with the berkeley versus florida case in one thousand need three although it probably decided judgment to decide to decide in a vacuum as if he had no experience isn't that exactly what this trial judge here is called upon that experience generally to as were calling the prime your experience here to answer some of my question to judge the testimony of the two more years you know your honor because that that case and the other cases cited by the state testifying credibly at a hearing you know that what the trial judge did hear it said well you know i represented defendants and it's not a hard sell for me to believe that you know that mr gambian based on my clients of the judges in the past wanted how is that relevant to mr van beyond and more importantly how can he subject that to the crucible of cross examination i mean how he spoke to know going into the area that that's something the judge is going to rely on in rendering a credibility finding that's not like sentencing where you know the judges and i would know in those situations that the judge is not getting back into his experience as either a prosecutor or defense attorney in saying i'm going to sentence the person to fifty years as opposed to forty or thirty but sentencing is an inherently just it's more of a discretionary exercise something completely different from making your credibility finding when he made that sign about this incredibly serious  the credibility of both mr gandy are learning and the defense attorney is testimony through his own experience as a criminal defense attorney and prosecutor go back into the procedural tucker of the case i believe opposing counsel did set forth the issue at the evidence your hearing of the pope's condition petition and because it was a denial his argument really set forth that you know he said that you know it's difficult in this forum meaning in the appellate court to with that and understand the credibility terminations and that's exactly why the case law sets forth that is for the circuit court to make these credibility determination to result conflicts in the evidence to assess the credibility of the witness to weigh each witness's testimony and here the court did that and made the credibility determination findings that the trial counsel for mr canby any prior to the st trial  accept the plea offer that was candid similarly the court found that the defendant was not credible and testifying that his counsel did not tell him anything about the sentencing range in the court stated that you know he found that defendant in trying and being an on cross examination when he learned of the consecutive nd thing he found that the defendant was findings you know counsel points to various what he would deem a legit inconsistency is in the testimony i believe in our brief we set forward you know and set forward why we don't do his or those are in consistencies or in you know impeachment issues i believe that both attorneys testify credibly and which is why the court particularly point out which was the attack on mr samuel testimony that he believed that at the time of the plea offered there were pending child pornography charges and i do you know i believe he didn't misspeak but i think really it gets it really tries to take this plea offer in a vacuum i just supplement the record with a with the  record from a hearing i seen a hearing a court date in january two thousand and nine which was about six months before the plea offer had been tendered which stated that the state notified on the record that they eight notified on the record that we we had difference of forensic analysis of the defendant's computer which contained child pornography images and making it available to the defense counsel and indicated we also indicated record that at that time there had been an offer tendered and that there were ongoing pre negotiation to both mr help and have written and mr samuels were aware that there were child pornography images  july th two thousand and nine right after the denial of the of the plea offer which said that we did inform that these were these charges were coming down and were going to be indicted and so therefore to say that the mr family's had no idea that there would be child pornography charges which is why he's incredible is really just not looking at the record as a whole i will say that just turning briefly to the prejudiced you know opposing counsel said that it was entirely the product of the attorney testimony that mr van biondi would not accept  dad john gandow he testified regarding his conversation with the defendant after he was told of the plea offer his death testified that the defendant told him and i'm going to close this i'm not supposed to do any jail time i'm not i'm supposed to be able to get probation or whatever i don't want to accept this defendant then on direct examination during the evidentiary hearing when asked did you accept the offer he says no i did not when asked and why not answer because up until that point i fully expected to receive an offer that involved some sort of probation i think it's just you know it's it's really belying of the record to say that it's only the trial counsel testimony that defendant only wanted to receive probation you know i just one moment  you know in terms of the other significance that the defendant places saying that he would have accepted an offer because he would have accepted twenty year offer after he had known the sentencing exposure the defendant omits that just prior to receiving the twenty year offer about six months prior to about five months prior to the defendant rejected a twenty five year offer that he received when mr samuels and receiving his sentence i believe the st time was forty two years she read he still after knowing rejected that offer of twenty five years even knowing that he was subject to a much greater their sentencing exposure and i think that's exactly what gets to the point of the analysis and people the hail as to the prejudice you know in order to find prejudice there must be more than a self serving statement by the defendant that he w or that there must be independent objective confirmation that their rejection was based on the advice and not some other consideration and their record as you set forth in the be the brief and here today the record is replete with  in which show that the defendant did not want to accept the plea because he did not want to serve any jail time he only wanted a plea that included probation  and you know there are no if there are no other questions i would i would the people would stand up to the law that a question i'm sorry i'm so used to doing it during our in person you know and for those reasons we would say that the arraignment who's obligation is it to inform the defendant of consecutive sentencing sure you know your own i i apologize i did want to i did want to clarify that the people did supplement the record and it begins on page twelve with a couple months a record that's not the arraignment i don't believe the arraignment is in the record and i don't believe he was a range i believe that the defense didn't wait for more reading what i did supplement was when the court date which was the st court date that the defendant appeared on and at that time we indicated that we had at more than two to me at least one but most likely more than one charge is a predatory criminal sexual assault of a child at that time the court did and one issue the defendant as to one charge  i believe that was in discussion in case he were to not return to court at a later date we did in guides and i believe the record reflects and i apologize i don't have about consecutive sentencing trial counsel waived formal reading of the charges so that you know in terms i would argue that at one point that there is such a waiver of that i believe that we did notify that we did and tend to seek an extended term sentence that was in november two thousand and eight i would have to go back and  review i don't see and the record where whether or not there was that court hearing is not in the record as to whether what was discussed at that court hearing so bottom line there's nothing in this record that would show that he w admonish by the court or by the state in open court that these were mandatory consecutive sentencing their correct i believe to trot you mean prior to the guilty plea or to the to me prior to the fencing hearing yes because i do but i did i do believe at the sentencing hearing he was you know breaking thing well consecutive fencing was discussed ok but at that point the offer is long gone so is there any the record that would show the court admonish him as to mandatory consecutive sentencing prior to withdrawal of that order or for porter you know i would say that well st i would argue that the report of proceedings does not have every court date transcribed the report of proceedings that is incorrect that is in the rip the report i do not believe has a lot yes there you are yeah no i have no question thank you and at this time i do not have any questions even this when you answer the one that i had about the supplemental record thank you his contention that he did not want an offer that included a term only of probation or that his attorney's testimony in that  regard was not truthful his claim is that he wanted a term of probation and that and that his attorneys fostered an expectation that he would receive an offer that included a term of probation as evidenced by  the e mails that were introduced at the rd stage hearing there was a phone message left by mr saying there was a mr john gambia awnings answering machine that talked about how he anticipated the state would expectations in a vacuum but were his expense expectations in light of the advice that he was given his attorneys and more specifically in light of the fact that he was not told he was subject to mandatory consecutive circuit court cases that have held that reinstatement of the plea offer is the remedy where you have ineffective assistance in the course of plea negotiations one of those is united states versus boy locke that three fed appendix three hundred and sixty seven i will concede though again this is not in terms of illinois case law an issue that's been fully fleshed out as of yet the last thing i'll say is that you know i think this is when made reference to me arguing previously that it's difficult in this forum to assess credibility that that's not what i was saying what i was saying is it's difficult in the course of a ten minute oral argument to point out all the ways in which mr samuels and mr however soon gave testimony that was contradictory and inconsistent with each other and that that's why i would refer back to the breeze  that we wrote where we were able to lay that out in much greater detail but i think you know this again is one of those rare instances in which if you really parse through the testimony at the rd stage hearing  the lower court decision be reversed advice by the court at any time correct no because this is not we're not attributing any faults for this situation to the court this is advise improperly because you didn't give him the proper maximum sentence he could receive and then i asked you how did you know that and you said the question is in the transcript which we don't  your honor i apologize if i misspoke so this is when correctly pointed out that that was not a formal d arraignment that was the defendant's st time in court where he was admonished as to the range of punishment he faced for the class x felony which was six to thirty years and it is you know i i wouldn't put too much emphasis on that it's not really interval to i think anybody's argument all i've done is i've i've pointed out that there was a change in the law affected june st two thousand and eight where his sentencing exposure changed from six to thirty  under like the misrepresentation or offers that were made but were never actually conveyed to the defendant and therefore the state was ordered to  offer to him went to trial last went up on appeal his case was reversed and as part of its order the th circuit held that if he closely but again this just hearkens because this was not you know we knew we didn't get focused as much on the remedy part of this i think either in the court below or here because we didn't get to that point but in a more than happy to look more closely at that but i just wanted to respond to your honor's question about is there any precedent that would suggest that that would be an appropriate remedy the trial as opposed to before now that's a really good question your honor it's an interesting legal issue here is what i would say you know this is not something that the state argued they did not argue so in theory in the abstract the state could have argued i suppose that by not raising this issue prior to his nd trial m this claim we were prepared to argue that his subsequent trial attorney his trial attorney for the nd trial would have been ineffective for not raising it  but they had never became an issue because it was not something that the state asserted you know i think the thing is though you know when when the case is reversed after the st set of convictions and it's goes up on direct appeal to sent back at that point it's a continuation of the original criminal proceedings and we have plenty of instances in which defendants come back on post conviction relief and they say well my attorney did something pre trial that was ineffective and we don't ever require a defendant to raise that issue ineffective assistance claim prior to trial even though it was a performance that occurred prior to trial we don't parse through that way the expectation is that if there is an ineffective assistance claim it would be brought in a post conviction petition especially where the evidence supporting the claim is off is not on the face of the appellate record you know i think state could've i suppose they could have made latches argument you know they they were somehow prejudice by the defendants failure to raise this before the nd trial but you know lax is does not apply if someone is not aware that they have a cause of action or claim for release and here if mr da willing to accept more than what the state's offer was to me that's pretty clear proof that he had he was not aware he had an ineffective assistance claim prior to his nd trial so i guess that's my answer to that