that the crux of the greenman in this case was his eligibility for probation because we actually have a record of what happened leading up to the plea which came from that motion vacate the plea the parties initially were negotiating and the state had offered a plea to predatory criminal sexual assault with a consecutive sentence the defendant rejected that offer and it was not until they reduced this offense to an attempt  ok well first the state and the appeal is agreed with the defense position that he was not eligible so they do agree that he was not eligible there's a couple things about winky first of all what the co said about c to f actually was that a holding in the case it was a sensually an advisory opinion so all first of all i don't think it has any presidential value because if in that case the court reversed the defendant's conviction so it wasn't anything that was necessary to the decision really shouldn't even been addressed secondly the court appointees then alice of the chord really undermines the court's opinion as to as long as the conviction was within ten years either backwards or forwards the court appointees said that's a reason a reasonable reading of the statute the plain language of the statute supports the state's construction interpret to the state in a manner this favorable to the defendant which was the interpretation the way you are going for sure of the opposite here you want to rule that says that it does make a difference it doesn't make a difference what i think what i'm saying is the rule of stand to create statutory construction if you apply the rules and let's even assume that they thought there was a man be duty the rule of statutory construction is not ok once you have addition to saying that the stage position was reasonable it also showed that the defendants position is reasonable so in that instance if the defendant's position is reasonable then counsel probably wouldn't be deemed to be  are many things that are so in their case their attorney was he not ineffective or making the argument but you're making the opposite argument does that mean that you're in effect no i think it means that the  disregarded the primary rule of state's attorney construction and that was not reasonable and then there's i have cited several cases in the brief that discussed the fact that the legislative intent that when there are two reasonable interpretations which would embody the legislative intent that is so far as cases in which the liberty interest was concerned the presumption will be the legislature was exercising going to war the court should do so and take the interpretation most beneficial to the brain so would it be fair to say that the rule of one of the is actually an exception to history they look at the staff similar statutes so if there were to for example in this case when the legislature wants to define the application of the statute by the timing of the offenses they've mikey had been found guilty he would have had to be sentenced and what they are doing is saying this is likely to come up again and we are going to try to head off the problem so it's not  and the court said if you say if he's found guilty again you know we do you have to consider this and so now we have to apply this to our case and act act or when we were there any changes in this particular statutory authority that would make it any clearer only that other courts have interpreted it i mean this court itself and carmen and printed it is unambiguous and saying it included in that particular case and that particular case the defendant was making an argument that the statute was ambiguous because it referred to class two felonies and class two felonies was  well i think because because really when he koran was not properly interpreted in the statute the trial judge really doesn't have authority it's this situation it's kind of like a separation of powers issue the trial court doesn't have the authority to ignore the plain language of the statute if there's an average case out there that isn't well reasoned i don't know that that trumps the legislative mandate and in hindsight we with the comparative analysis with the elena constitution where the supreme court for a period of time was saying this offense is less serious and it's punish more harshly and use this analysis and several people were improper are knacked based on proper rules of construction then the trial judge i mean first of all the trial judge in this case i don't even think had any awareness of what i don't even know what the parties  conflict with another plane reading the statute which was presented by a defendant and the rule of one of the says that when the statute can be read clearly distinctly are precisely two different ways and they're both reasonable we would interpret the law in favor of your client as well and you don't want that to happen you want to say i don't want the rules when they do apply i want to stick or unquote vacate my plea because i want to be flagellated or tortured or well the consecutive sentence while it's a pretty big how the court said that's not appropriate for us to decide at this time because we're taking your plea so i don't know that the fact that the legislature didn't so i mean i don't know what they c become more of whether or not the defendant showed that he had a reason a misapprehension regarding the sentence he was to receive in this case there was testimony posed by the defendant and his wife that he expected or hoped or if we were to go there at the track or heard evidence now the allegations that were made and heard it's some rather graphic evidence and was pretty positive in his well i don't want to talk about the facts but was very positive about how he thought about this particular offense notwithstanding the defendant's allocation that he you know will be sorry offender did so with questions of the the the defendant's argument that he was seeking probation at a tough time and he was offered we don't know what he was ford didn't use the statute for purposes of determining that it was not going to grant program faces and it was probably modest that he was on reasonable to interpret that it's it's a breeding against the plain language of the statute is not a reasonable reading of the statute and the court in inward which i cited in my brief said there's no rule of construction which allows the court to declare that the legislature did not mean with the plain language of the statute imports the kuwaiti said yes the plain language of the statute they used the phrase plain language of the statute supports the state's position so i don't believe that is to punish more harshly repeat offenders in which you are when you have a second conviction within ten years and the other one with respect to within for you is  believe that it was my big it was going to get a sentence less than the maximum but i don't think he was at his belief was objective and reasonable and i think the record chamish to her credibility and incredible right the judge didn't but i think the record reflects that even the state itself the impetus for the plea on their end was she was not so sure we can get a conviction with molly jensen as our primary witness so i don't think the defend they asked they said that someplace in the there's when they were discussing the terms of the plea agreement i think the judge put on the record that the state is concerned about and may have even been explicitly the state is concerned about the mother here so there it seemed my recollection was they were pretty much relying on her so i don't think it was so unreasonable for this defendant to believe that he could