decisions can be justifiably held against down or whether he's someone who's obvious mental illness and limitations render him sufficiently vulnerable that his trial especially with no representation offended due process  we're obviously arguing a letter and that that starts with the issue of trial pockets so trial honesty requires that he had both a factual and rational understanding of the to stand trial and to represent himself and he didn't know that he didn't know about that attempted murder charge despite having had his charges explained to him in open court on to higher education is when he said he didn't understand his  to ask you a question about that because the judge held to competency hearings and had an expert report in front of him that upon you know no report to the contrary that mr gerald was competent and the report seemed to suggest that some of his behavior was will issue rather than caused by mental disease  we reviewed the judge's company to determination i think for abuse of discretion because it's it's a factual determination everything you say makes a lot of sense to me and had to judge found to the contrary i'm not sure i would be only charge was the assault charge so the court the court is not permitted i mean even where there is no other report the court has to pass to look at the record and consider whether it's reliable on here there or there are lots of problems that we're go through in the pattern going back to adolescence that's not better explained by another psychological condition and she makes a diagnosis without any records predating his arrest three months earlier without interviewees family without the benefit of any formal psychiatric testing doesn't actually know he's been charged with a time and and he also and i have one question is there a duty for the psychologist to interview family members or look at prior records were do all the things that you suggested i've not psychologist or was it out here so there's there's just not there's just not that much information to go on other than the psychologists own impressions and we have a psychologist she doesn't tell us how long she needs but mr general there are how many patients we don't even really know the basis of understand we're not talking about the forever right for a moment we're talking about competency of said trial you must understand the nature of the charges against you is it also required that you understand how they're characterize in other words mr gerald clearly understood he was on trial because he went to the post office and stab somebody he may or may not have known the distinctions between assault and assault with intent to kill he understood the nature of the charge which is that he was being charged because he decided for whatever reason that he had to take revenge against this postal worker is it is he not competent to stand trial because he may not understand the charges more serious than he thinks i believe so i mean it's understand the proceedings and i think understanding them factually and rationally certainly means that we need to understand the seriousness of of the charges and  are particular attempted murder its use is something that doesn't just i mean it isn't just serious and also sound serious a layman might think well assault what's that but tempted murder everybody knows that attempted murder is a remember the attempted murder because he was going off of the charges off of the national complaint which to me seems like a pretty sophisticated understanding of criminal procedures when you agree with that no one else your honor it's completely irrational understanding of of of criminal procedure you get initially charged with something and then you get indicted the initial charges don't matter it's the environment that matters if you if it was reasonable for a defendant or or an same guidelines range don't they use the same guidelines i i believe they get directed to the same guidelines i'm not sure if your only convict if for assault with a deadly weapon if you for instance heighten the base offense level  but i'm trying this with the competency determination here would not be particularly concerning to me if mr gerald had been represented by you or able or able counsel  so isn't the real reason your real concern that he represented himself you know another words it seems to me he understood what the charges were about he made out of understood the technical elements of each offense so the real problem the thing that makes his case more concerning of course is that he exercised his forever rights and you know i think i could make lots of comments about parental rights but every time we tell a defendant he can't exercise the supreme court says no you're wrong he gets to exercise them so it d isn't there is that the combination of the two things here that's the real problem ok i yes though i do want to push back a little on this idea that he really fundamentally understood his charges because he's out there all in the charges and he's an attempted murder charges not at the end he explains that as you know well i'm talking about the underlying dispute but he's using that pettiness as a reason to  want to fire his lawyer he thinks his lawyer must be in cahoots with the government because this as a matter is taking too long so he's really conflating is male fight you know he's issues with not getting his mail with attempted murder and that's that's just not a rational err by not revisiting a competency of sentencing because at sentencing we really just seem frozen i mean you see you see here he's facing twenty years he's been convicted of attempted murder and he just goes he's just does nothing to support and and while he's doing nothing to support himself the court is serving that he's obviously mentally ill and that that's just very concerning and to me i just remind the court that question here on this point the p r storm a mistake the standard not clear what standard the judge applied because she didn't say but can you meet the clear air or requirement there seems to be lots and lots of evidence or premeditation here i don't need to meet a clear her requirement it would be it's it's it's plain air and the plane air is the legal air that's what i meant i'm a play i'm sorry ok sorry so the plane there is a legal air and then to meet well ok but to tell me how the district court made a legal where i understand the p s r may have made a legal or tell me have the district court made a legal or premeditation but it says the st degree murder is the all unlawful killing of a human being with malice aforethought that's one part of its definition and every murder perpetrated by lying in wait well deliberate licious and premeditated so it's to give you a little bit of time for a bottle because i still have one more question sure i'm not sure but let's assume it was legal error don't you still have to show that you were prejudiced by the legal or because nobody objected to it below that it very reasonable there's a reasonable chance of the finder of fact would come out differently i do need to show that i think what we see here is i mean premeditation is cold bloodedness calm moment may be a very shortly mirages attacking someone in a blind rage is not premeditation that's that's i mean something else with her but he gone to the post office with a weapon after one of the postal employees who just recently testified that he says on the phone call he's going there to get his mail and he's bringing a knife because he doesn't like that they're lying to him and he's he's there to show that he's serious so there's also evidence that he's bringing the knife for some purpose other than attacking iraq and he's trying to scare the postal employees have actually given him this mail that he's been coming in trying to get repeatedly over over the course of that thank you and what we took you over will give you a little bit of time defendant did show signs of mental illness but he was evaluated by a friend of psychologists who concluded that his mental illness would not impair his ability to understand the nature and the consequences of the court proceedings against him and also that that mental illness would impair his ability to assist counsel in his defense work to represent himself and that opinion was consistent with the defendant's behavior in court he responded appropriately to questioning during multiple extensive colloquy with the district court he was polite and well behaved during all of his court proceedings which he knew he had to be to get what he wanted which was to represent himself so based on this record it was not clearly erroneous for the district court to find the defendant competent to stand trial and to represent himself as was his constitutional right to do i i think there were a number of times in the record that the defendant demonstrated that he understood the proceeding he it right from his initial appearance when he was expressing a desire to represent himself he argued that he should be released on bail he not only he made he made a good as good  have he applied the appropriate standard he said he was not a danger because he never engaged in this sort of behavior before he addressed the government's arguments about his nonappearance in prior in prior sta proceedings and said that had taught him that you know this is serious when they say to appear so we not only understood what was happening he was able to appropriately apply the legal standard to this case he also explain passively but he demonstrated throughout that he could retain that information and apply it in later proceedings with respect to the argument that he it the day before only recounted the assault with a deadly weapon charge and not the attempted murder charge there were multiple times in the record that he demonstrated an understanding of the charges for example in the competency evaluation the psychologist noted that the defendant when asked about the maximum possible penalties he said twenty to forty years he thought that the plaintive the government had mentioned in court which was accurate that that is what the government had said in court where the maximum penalties twenty years maximum per charge for a total potential total of forty years combined and so that didn't account for the attempted murder charge he also the defendant during his trial he cross examined one of the witnesses about the fact that the witness did not hear the defendant tell the victim right before he attacked him that he was going to kill him for lying to him and support that's a question that's relevant to the attempted murder charges well so do record has substantial evidence in it that he understood why he was in the court he understood he was there because he engaged in a knife attack on a post office employee what the record is less clear about is whether he understood what charges were being brought against him because of that which is to say it's less clear that he understood that he was being charged with attempted murder let's assume he didn't understand that just for purposes of the question cases talk about the defendant's understanding of the nature of the proceedings that are being brought against him and the cases require that the defendant be given notice of the specific charges but i'm not which defendant clearly was g n notice of the charges multiple times i'm not aware of cases that would require him to read back or recall the exact charges and as the court has pointed out these are charges that arose from the same con defendant clearly understood the conduct that was that issue in the case it's not as though this is a case where his inability to recall from memory the attempted murder charge meant that he was completely overlooking some portion of the conduct that was at issue and and he did provide an explanation as reasonable when asked by the district judge you know we're on the eve of trial why are you only remembering the assault charge he said and that's what i was arrested on and that's accurate the complaint did only talk about the assault charge it's not unreasonable for a lay person to think that those are the charges i think  and state proceedings i don't know how common it is to have this procedure where additional charges are added in the later charging document and he's really only dealt in state in state proceedings so he that's  nuanced legal concept in terms of what the operative charging document and it's not unreasonable for him to focus on on the document that he received when he was st arrested today can i get a count good of about the  was the penalty range expanded because of the attempted murder or the statutory maximum was increased because each charge carries a twenty year statutory maximum which means both charges together would have carried a forty year maximum sentence the guidelines range i don't know if the top of my head what the guidelines range would have been just for the attempted murder charge just for the i don't i would have to do the calculation i don't know i did i think and that's that's really the question i'm asking so not understanding that you are in greater jeopardy of a prison longer prison sentence because of the nd charge is the issue i'm trying to focus on well i guess i would say to that so the district court would have had discretion whether the guidelines range what it included a fourteen year sentence just for the assault charge i don't know of course given the statutory maximum the district court could have sentence him up to twenty years yes you know exercising discretion to go above any any guidelines range that was there so he he could have been have been the outcome is what you're saying right so can i now ask you about the sentencing and let me get so i'm not hiding the ball on this let me tell you what concerns me is if you could respond to it the p inclusive and the judge doesn't make any specific findings about premeditation she just simply says i adopted pierre's or so why isn't there a legal are put aside for a nd whether or language of the statue defines the unlawful killing of a human being with malice aforethought so and that tracks the statute which which st defines murder and generally all murder so the statute says any other kind of willful deliberate malicious and premeditated killing is murder in the st degree so i think that's i think the p s r is consistent with the statute which is that it's st defining murder generally which could be st or nd degree murder preference but then when it got to this case and tried to apply it may have measured incomplete or incorrect statements and then the judge doesn't make a separate analysis so taking it that way is that legal or i don't think that's a legal error i think that p s r sets forth the correct legal standard and that's a legal issue and then the question is whether the facts of this case meet that legal standard and and so that sort of takes us into clearly erroneous standard and whether it was clearly clearly erroneous find premeditation willful deliberate and so i think that's where we are once the p s r are  legal standard i don't think the court is bound by the p s r's analysis i think now looking at the factual issue of whether the abbott and you know there's a plausible basis in the record for finding  this case i read to p s r but i find premeditation recounting all the facts that i'm sure you could recount to be this would be an easy case of trying to figure out what we do in the case with the judge says simply i had s or without indicating that you've done the separate analysis that you are now giving us does that matter i don't think it matters because we're on plain air review so i think the court is looking to see you know st again whether there was error whether it was clear obvious and whether it affects substantial rights so i think given that standard the court is not i think the court can look at the record as a whole and find that the evidence to support that would support that factual finding and it makes sense of the district court didn't really get down into the weeds of this issue since that wasn't ever raised so that is the reason for plain error revealed because reasons why premeditation the lack of a finding premeditation is harmless do you think that that's not evidence of premeditation no i i do and if that wasn't cited as a reason in my br in on this victim who had testified against him just a couple of days earlier and then when he sees this person because i'm going to kill you and then that's before he attacks so absolutely i think that that is here thank you so just a couple things in terms of what he does at the post office when he gets there he's doing also he's asking for a smelly doesn't go there meet and immediately look for the victim again there with his confirmation and he's analysis isn't just whether the facts support the district or it's finding again it's whether there is a reasonable probability that the court would have come to different conclusions given the right standard and i think there is that probability theory again looking at all this evidence that he was out of control and going crazy going back to the government pointed out all these instances in which he said you know  irrational on every dimension but where he's identified some preconceived notion like that it's case petty or that he's not charged with attempted murder bets he's going to stick to that assuming that diagnosis it's correct and finally just on the real notice issue  the the actual charges show that he says a real notice of the charges is necessary so fundamental point of view process i can't see how notice could be important but understanding and knowledge wouldn't be like you why would it matter if you case in this case will be submitted