judge seized on it sends the third drink go to the doctor jane go said the information he provided was accurate but simply might have been misunderstood he was reluctant to admit that he provided false information but in reality if you look at what he says his first report said nothing like he tries to claim and then in the subsequent report which is that he was simply for trying to provide to the court what the what not the therapeutic level of ambien is but what it would have been if it had been taken the night before yeah well let me put it this way is there any doubt that dr branson misused the ambien the the question is that to the degree r manufacturers on data says that somebody who has a medication history of this sort that mr benson had you build up a tolerance he said he took forty five pills that day right well that was unclear in the record actually well what does subsequently told the police that he may have taken some after the accident as well when he was in a pack having a panic attack panic attack and had both xanax and ambien in his pocket and he wasn't sure you know what was what he was taking  degree he would have been under the influence when i was you know i can understand what possible difference that could make this case while you're on i think it makes a very big difference because in terms of the seriousness of  said what do you what do you what is your theory of what happened next that what caused it well the it's law of the case he admitted he pled guilty to it or no contest which ever look just answer my question what do you think happened he was distracted and if he was where if he was distracted started by what apparently he was on the fall and i see it and you think that if that it you that if you plowing into a stopped car at fifty miles an hour because you're fussing with your phone and you kill people no problem as long as you weren't take as long as you didn't the accident would have happened the same way as you say it would have because because of the telephone and that's somehow exonerates i'm not we're not arguing he's exonerated we're arguing that the degree of sentence he got  he's set but it seems to me his crime is not the worse because he has a lot of ambien and it's bad enough if it's on the phone it would be worse if he wasn't on the phone but he decided to commit this just little hond to worry about that but your honor if somebody has a high b s e if two point five versus somebody who's a who i hear a white difference does it make you just said if he didn't have any drugs in his system the accident would have happened just as it happened because of the telephone well the court  difference does it make it it looks like the drugs are are a superb clueless factor in this well they clearly weren't in the judge's sentencing didn't he look at it that he has no  contradictions right the defendant is the source of the information about how many drugs he took right right the defendant is the source of dr jane goes analysis by his attorney and the judge says in  essence i can't no expert has told me any way to quantify the degree of mr benson's impairment at the time of the collision so the judge is backing off of all these nuances and saying but he didn't even hit the brakes except in the very next page he says this is very this is very clearly as a serious a high level of intoxication and that's that's why the probably staun no breaks no i think he's talking about he  talks about the brakes being one factor but he spent a total of sixteen lines and in the transcript and that he wasn't reading the brakes one factor i don't get it but the aggravating factor here is that he didn't break not at all not a little bit and looking at page one fifteen of the sims you transcript right but then the very next page i believe it is it's apt one sixty six or one sixty he says this is certainly a serious level of being under the influence of being incapacitated but if he but you're not then no i don't you understand if he's incapacitated maybe made terrible mistake took this ambience stuff shouldn't have done it in the state and as a result he can't control the car and he has this terrible act that's fed but you can say well it's the drugs did it made him feel it now take a case in which no drugs he's perfectly lucid you just kill some people well and you think that if someone is taking their attention away from the road inattentive driving in some respect and then what you're trying to excuse reveals what you're trying to do is back away from the conviction right on not look in your brief you say his degree of impairment if any at all right right what are you talking about or what i'm talking about is under wisconsin any impairment however slight is enough for intoxication that's why he pled no contest to the to the offenses he was found guilty of the offenses were not trying to say that he shouldn't have been but we're saying is that his his degree of intoxication was misleadingly presented at the sentencing in the judge relied on that in giving him one of the most harsher sentences in the history of the state granted relief based on incorrect information presented by the defendant himself i'm not aware of any but i don't think it matters whether the defendant presented himself one because ultimately it is talking about due process now because we're talking about where opportunity to be heard right but if there's truth to it to x factors to consider there one is whether the attorney was deficient in doing so should have he  knew there was a mistake in it and didn't correct it and just made a mental note and filed it anyway but in reality the whether or not the it's false information presented by the defense or the prosecution wouldn't affect a difference of wh because in paragraph twenty six where he lists the therapeutic levels of the of the various medications he incorrectly lists ambien as between three and eighteen micrograms per liter and here mr benson reading is fifty three but that's accurate if you're talking about having taken it as directed right that's not how he said no it's not that that's why it's subject to misinterpretation correct but accurate i don't know whether  i don't know whether it's accurate as at three o'clock the next afternoon he doesn't make that it's an obvious a well he said something about form there's evidence that he was on the phone at the time he was that came from that was from i think the police please the court i'm standard tarver assistant attorney general for the state of wisconsin i represent the aft helli the your honor you asked why this accident occurred the accident occurred because dr that was established by dr benson's guilty plea or no contest pleas to the charge of homicide by intoxicated use of a motor vehicle but the problem with the constitutional claims that he's presenting in this case  lies in the fact that he can show that the wisconsin court of appeals or the post conviction court incorrectly decided the facts the wisconsin post conviction court and the court of appeals found the sentencing court was not in fact misled clear and convincing evidence benson can't rebut the presumption based on the record and this case to the extent that the sentencing court looked to the django repor for information on the level and effect of ambien and benson system at the time of the crash the court was doing so certainly not to determine whether benson was impaired because that stablished that fact was adjudicated the court or may have been looking at the information to determine whether whether the level of impairment was so great as to constitute an aggravating sentencing factor the court was not misled by the jangle report on that question as to the level of ambien the court simply correctly notes what in the report that the blood test here showed that the medication was present at much higher than therapeutic level but the court did not make the mistake of equating the levels of ambien in the sample with what the levels of ambien would have been at the time of the crash why because  reported that he took ambien after the crash and before the sample was drawn a fact which for some reason doctor again go does not acknowledge anywhere in his original sentencing report so the sentencing court correctly understood that the report does not tell you what the ambient level was at the time of the crash as to impairment at the time of the crash the report is inconclusive on  says that ambien could have produced significant conative impairment at the time of the crash which means it's possible that it did and it's possible that he didn't did the court misunderstand no the and i think i recall clearly that the aggravating sentencing factor in this case was not the level of impairment but the driving so i think that the court there it's conceivable that information could have been put before the court showing that the level of ambien and its effect on dr benson at the time of the crash was so beyond so beyond even of even misuse even horrible misuse that the court could say i find that such a highly aggravated level of impairment from such a highly aggravated level of misuse warrants the imposition of a greater sentence that i might otherwise impose so i think you have it or both of you have it backwards matter and he has this accident and you're saying that that his punishment will depend on how much mitigating factors in those cases right yes your honor so could i ask you i'm the best evidence i found so far on the record about what pills dr benson took the day of the accident was from the prosecutor's summary in the p c r here and we have it in the appendix do we have the underlying information available to us police reports or the i can't put my finger on the underlying information i can tell you that at the sentencing hearing the prosecutor summarized some of the information and at that time said that dr benson had reported taking four or five ambien tablets on the morning of the accident and there's never been any dispute about the accuracy of that card so that information was before the sentencing court as well as information that  our position has been even though obviously it can be look the case can be looked at from different perspective that the courts overall conclusion was that i just don't have any information and the jangle report on the basis of wh to say there was a highly aggravated level of impairment caused by ambien or any other drug and so the court proceeded to sentence and other factors the aggravating factor being the horrible driving the horrible horrible driving in the judge said exactly what your honor said how do you not see the car that is stopped in the lane directly in front of you how do you not see that that is aggravating beyond it is not necessary that this court reached the deficient performance problem even if it does it is not necessary to decide whether the standard of review would be do no the standard for judging an attorney's performance is highly deferential even under the novo review this report did no harm to benson's position at sentencing it may not have been very helpful to the sentencing court but it did oh yes he had he well he admitted that he was materially impaired at the time of the accident he admitted that when he pled no contest well you may decide that that's the end of the case i think that i thought that the due process argument was that the sentencing court was inclined to impose a harsher sentence if it found that the level of intoxication was so great that it would warrant imposing a harsher sentence and the contention has been that's what happened the that's not what happened the appellate contends that the sentencing court considered that perhaps but concluded that there wasn't information in the jangle report on the basis of which to go there and so the court didn't go there guidelines on blood alcohol levels get higher than the sentences become worse the more under the influence someone is with blood alcohol and the same would apply with any kind of medication the reason being that  created he had a terrible accident correct your honor and there are now why would it be better somehow more innocent of him to have a terrible accident when he was fully accomplished madness because in wisconsin