that the defendant wants a trial then both the defense counsel and the state say if i saw another way and the matter proceeded to trial i submit there was another way this case  about a failure of responsibility this appeal is about not simply shrugging your shoulders at various stages of this case each party failed i like to focus my arguments on the second third and fourth in the brief but obviously  it he was found restored but that fitness remained a question and there were many question over a year later when this case went to trial the court did not protect mr brown's fundamental right to due process by following through on its ongoing duty to ensure the fitness of the party in front of the state simply wrong in claiming that the underlying finding of fitness was addressed  judge right before trial was aware of the fact that he's going to prejudice and self that that requires an evaluation at a minimum the next thing that happens is when when mr brown testif obviously what we're talking about is not just when we're asking the question of whether or not someone is fit for trial what we're after we're also asking is whether or not they're able to assist in their defense and that's the critical problem because we have someone that the moment that he speaks from the witness stand he's not he's not able to assist for me in his defense when he's giving nonsensical answers and these answers are things that are tied to the underlying cause of mental illness every answer he gave nonsensical not every answer  are not correct or percentage of those that we did reach i don't think we need to talk about percentages i think we have to talk about whether or not he is able to to able a system is defense and frankly one of the things that that that struck me as i was thinking about this case for today is you know the state saying that you know his answers were cogent and they were that he was able to present an alibi defense but that prosecutor the very first question he asked on cross examination he knew was to hit back on this thing that reveals that this person is not competent but there are some competent being you know i'm not for use the term of art here but the very first question our cost is mr brown would you read would you introduce yourself again because he us there was not because defense counsel was advocating on his client's interest to that that he was fit and to proceed with trial this is a defense counsel shrugging his shoulders as we saw before trial that's what we who came to zone conclusion based on that that's the money to her testimony that's history is not subject to any cross examination basically again while while being different from simply accepting simulation  obviously this the court was able to sit there and listen to the questions asked by the prosecutor but that those those answers were not challenge in any way they were obviously the defense was it was proceeding that he was fit and wanted to see so there was it was not subject to any you know like your you're able to write i'm not saying that one can't make the credibility determination based solely on one from test run challenge test but there was nothing to sort of reveal  if anything i think the judge many times did exactly what the judge should do because obviously four months after this restoration hearing the judge ordered another finisterre valuation and that's great that's that's what should happen but then we can't just get to the point where we stop and we end particularly when you know there were about to call a jury we're about to present live testimony and you still have these questions you know before trial that he's going to prejudice so that's the whatever you want that's not what the courts today used to do well but again a lot of people said if i wish they never did but he did ok so how did the court know this file be false was he supposed to get this in front of the judge judge before sentencing i filed a motion right here at the sensing hearing your honor this judge was threatening to remove him from the courtroom but he never brought it up at that time when you're facing that level of hostility from the judge when you're facing that go point counsel we're just saying these claims need to be addressed we have someone that obviously has been having problems with his attorney throughout the course of these proceedings has attempted to bring to the court has been told repeatedly you have an attorney everything has to go through your attorney it's it's become the standard by which when when frankel first came down frank was talking about need for hearing the need for a point of view counsel it was a recognition that this is not something that is they have in every case there is a recognition that but that what we need is for there i don't i mean beyond simply filing a motion i don't come across a unskilled on the educated individual with obviously an ongoing series of mental well it's i've i've put a motion i've i've i've told the court i'm following a motion and then i did file i don't know what else we can expect the president again let alone the president live again with i think a and ongoing question about his fitness which correct those two things do not have but they do have to do in terms of the timing and in terms of when he's making these claims and he's told the court that he's following the motion the court tells and be quiet he files the motion i honestly when you were when you're putting yourself in front of a judge and you're about to be sentenced i judge i think that there is i think i can't think of what more i would ask this guy to do in order to make sure that that claim is being address really they're they're they're they need to be read hand in hand because i honestly don't see how you can have one and the other all you can say that this guy was was clearly able to understand what was going on in the system as his attorney  but then when if he has a problem with his attorneys behavior you're not going to pay any attention to what they claim what's this case is about the respect of the individual and i don't see that respect but we ask this court to reverse this conviction because nothing about this case rises to the level of of the felony version of disorderly conduct but i do minimum we think the fitness issue does still need to be resolved and out and if and if this court doesn't agree on the for this question we think th this is the trial court ordered several examinations of defending the first one in september of two thousand and two thousand september twenty third two thousand and eleven came back then when it was not fit for trial and then he could be restored to fitness within a year transcripts he tried to request something related to people dismissing accounts and he clarified his request for daily transcripts those were the so called outbursts before trial and as far as is so called nonsensical answers there was one and that was his introduction usually the witnesses paying attention and not impaired in any way to feel things they didn't do that i mean when he when he faded was something very unusual why is that not  signal that something was not quite as it should be here we don't because reading the rest of his testimony both on direct and cross there were no outbursts there was no unusual statements by the defendant in fact he put forth he testified on direct and cross to his alibi defense that he was an athlete stops that they when he threatened to blow it up and kill everyone inside he said he was at the fifth third bank fact that maybe this defendant isn't quite hitting on all through your theory a specific number you said it was just one but if the want is nonsensical enough is that enough you'd have to look you really do need to be taken in context and look at everything else that occurred in this case both before trial and during trial because there we know this defendant the trial court was so have salute the diligent and protecting this defendant's rights and having respect for this defendant and making sure that he wa ordered six clinical examinations and that the first one that came back as him being fit was in january fifth the truck or took another one in june had another one in november this defendant in each one of those beginning with january fifth every subsequent clinical examination came back that he is fit he has it here into his medication regimen and that's it the fact that he makes one nonsensical answer that's not per se require it reversal of finding him not fit or a per se rule that the meant nothing else that's not what the defendant said in when he made that world statement on april second your honour's any of his allegations about that went into any sort of anything about his counsel was in that written motion on april second he made he said he was unhappy with his counsel and here's how it read just in brief defense counsel this is post trial defense counsel i only received a copy of mr brown's present best patient i have read it it's my position at this time we need to be reevaluated by forensic clinical services that i object to that your honor and i would ask for another counsel to take on where neediness falling short of her duties the court so noted defense counsel and so i prepared an order from mr brown to be reevaluated and i'm asking your honor to sign that and we take a da the sake of argument that she knew should she have brought it to the court's attention if it was you know if there was something in the record indicated men's health and that counsel and if he hypothetically if she knew that such a motion live again who has a history of mental problems mental illness who says my counsel is paying any attention to me i think my counsel is in effect i filed a motion the judge may not know about the case law on this just speculate but if you want to answer it yes i believe that if there was something in the record that said that she knew about it then certainly it would be it would be sessional of her or him to bring that to the court's attention we do guarding a pro se defend a move has the responsibility to obtain a ruling from the court on his motion to avoid waiver on appeal and here's what this court held in newman and my so motion is brought to the attention of the court and the court is requested to rule on it the motion is not effectively made a motion is an application to the court which must be brought to the court's attention merely filing the motion with the clerk of the court does not constitute a sufficient unhappy with the assistance rendered by his and he made that aware made the court where the name for a second again that was not actually an actual claim of ineffectiveness we can see by reading it here that was in response to his objecting to  don't want to go through a seven clinical examination you have examined me six times before and found that five times i don't want to go for my question went to the fact that orally it was brought to the court's attention that he was unhappy with the that it's based on well defendant i will object to the court i note your continuing objection please be quiet he knows but the defendant is doing it he's objecting to going through another exam is not making a claim of ineffect a fair trial this race were protected and he had great respect for this defendant to make sure he was fit and was had a fair trial and he did yours this trial court that your it properly found him guilty of felony disorderly conduct or threaten to blow up a post office and we asked for these reasons and th couple of quick points obviously justice cunningham you're correct in the through the citation of the case of people the newman is an appositive because that predated the war decision and it's no longer good law because morris obviously the overseer or if it came down subsequent to that human decision the people he read decision which the which which counsel stated had specifically to do with the duties of an attorney representing someone or pro se defendant representing themselves to trial that they have a duty to face the fact that the duties on the judge and this was a judge that was told i'm filing a motion judge ken tells him to shut up but he files a motion what else what else are we asking of pro se individual who is having a problem with his  y able to and then at sensing hearing his repeatedly told to be quiet to stop interrupting or you'll be removed from the proceedings again i think this this this individual has done everything in his power to make the court aware of the  issue that he's having with his it's running at a bare minimum this matter needs to be remanded for consideration of a motion but your honour's when looking at this decision and it's not simply and to briefly return to the fitness question it wasn't simply want to answer  he gave that answer and then he was raising his hand his attorney tom put your hand down and he continued down talking about being a veterinarian talking about stalking when on cross examination the state again asked him to to elicit the same damaging testimony and then his testimony also there's often no question of one of his family members being hogtied and beaten by the harvey police these are not answers that were directly responsive to the question at issue these were answers that