mitigating evidence of the appellant's troubled background and diminished mental health at the sentencing phase and as a result your honors mr wilcox received a longer sentence than he should have we're all familiar with strickland sue part to us now obviously we have to demonstrate some objective we under reasonable standard of performance by counsel and then consequently mean his trial i'm sorry syncing decision not to use that report or is there something else to your honor the mitigating and this would be the psychological evaluations conducted by both  doctors that trial counsel procured before trial the question in this case is having had procured that information which would support a mitigating factor in your new jersey sentencing is set forth based cases and with the a b a guidelines as this court has relied on to determine what what counsel has to do at  and remember sentencing is a different analysis than trial guilt phase is different did you do it it's not do it with mental health evidence supporting insanity defense or not a war provocation defense or not so on so forth introduce them and because we can see what they contain why can't we infer that was strategic i don't think we can infer a strategy or at least conclude that it was a reasonable strategy in light of all that the other circumstances number one if you don't have evidence that trial counsel gauged in the strategy it who knows what the thinking was originally how would you know that i mean that's just not how it's in the care of some leaks a decision i am not going to use this report because it's going to be more not having evidence some of the to imply or not apply but the question is really wasn't that was a reasonable situation and under the circumstances here we had a defendant who was already who had already met somebody gaining factors  defendant who had no prior criminal record we had a defendant who had no run ins with the law no crimes violent or nonviolent and all of a sudden we have him committing this this terrible act and  sentencing the sentencing judge concluded that i find to aggravating circumstances exist i find to mitigating circumstances it just i don't know anything about mental health records i never saw on not going to go there i think in that situation the aggravating slightly outweighs the mitigating and therefore we're going to set some of the forty years so we're starting on the lower end a lister will cost him we had a wash two against two the judge made a judgment call the aggravating only somewhat old somewhat outweighed the mitigating circumstances and therefore i'll give you forty years thirty years without parole what do we make of the fact that the judge who presided over the post conviction proceedings was seemed jives the sentence and during the course the most conditions proceeding that is that trial counsel me the best arguments that he could and that he could not think of anything else that but what the judge did there was not opining on whether those psychiatric evaluations would have changed the sentence he was talking about something else he talked about the guilt phase of trial and whether that the motions with that judge if i am not mistaken read the psychological reports and say it would have made any difference i'm for your mistaken judge and i think there was a difference or you know the group reports were never available to the cursory run i think counsel for mr wilcox during post conviction proceedings mentioned that they had witnesses available to testify as a justification to within which to make a judgment as to whether word of matter for sentencing and on the remarks that i was referring to i was it comes in the context of the judge's findings about whether there was ineffective assistance at the time of sentencing effective in the sentencing presentation that despite the presence of aggravating factor one the nature and circumstances of the offense wilcox was sentenced in the lower end of the range so how can we find prejudiced under these circumstances well in this case your again let's assume that counsel felt the well professional standards and now we're going to produce a situation in this circumstance where you have a defendant who was already and we talked about this before who was already at the lower end of the sentencing spectrum who has met various other mitigating factors and who the sentencing judge even conceded should be at the lower end of the range for premeditated murder all you need is a probability that these mental health evaluations one have affected the sentence in a positive way we don't need certainty we just need our standard of review here with respect to both the object of reasonableness of council performance and prejudice issue i think because in this kind of gets back to the confusion over whether the p c r count the p c r judge was really commenting on the mental health evaluations or just commenting generally on counsel's performance  at sentencing but what on one hand arguably the p c r court never reached in juda cation on the merits of the ineffective assistance of counsel claim that sensing with respect to these but having said that even if we can cut the gordian knot and say pick the harder of the two standards and i think mr wilcox established that he was entitled to a b s relief even under a more deferential standard because again you still have to decide whether the courts were reasonable in their application of these standards to the circumstances that mr wilcox faced or were contrary to the standard is there any suggestion in the record that had this parole after thirty you know we don't have any indication that the sentencing judge would have given him a lesser sentence had he had the reports the sensing judge said i don't have them i'm not going there for specifically referring to the claim on post conviction relief were mr wilcox counsel saying mr nor sat trial ought to have submitted these witnesses and the reports to decision on mr wilcox's claims and made a decision under very deep peate of whether that decision was contrary to or an unreasonable application of federal law that's again while we believe that the that particular issue very narrowly defined was never really adjudicated on the merits we certainly concede that at some point war and on reasonable application of you know federal standards and again you still have to get to the the stricklin analysis to make that determination what from what i think ultimately will be is you know the standard that you're going to apprise going to dictate the outcome obviously of the case but we submit again i think going back to the point the way mr wilcox police request that you affirm the district court ruling denying defendants hideous petition because it properly found that the state court rulings from either contrary to your an unreasonable application of strickland before i begin the substan arguments or just want to clarify something that i believe may have caused some confusion in the state's brief especially upon review of the a powys reply brief and to your honor's comments that the physical reports were before the i apologize if my brief led the court to believe that our argument was more that the substantive arguments the troubled history the defendant faced as a child or that he alleged to have faced the actual reports themselves were commented upon at the p c r hearing so the overview of those records were before the trial before the p c r court and as such although it did not have the physical balland copies of the reports that the experts had concluded had provided it had what was the court explicitly stated so counsel made a strategic decision to focus on me uncontested mitigating evidence that it could present and ensure that counsel that the court found those mitigating factors and set of trying to conflate the issue or to confuse things by making this a battle of the experts by introducing expert reports that had unfavorable statements that cast a negative light upon defendant and upon his cousin who testified at the sentencing hearing the government one that was actually by a great deal a great amount of violence by his by his i believe the only proof of that is the statements of defendant in the reports them's selves school records p n p records other evaluations that could support these claims the only thing before the court even with review of these expert reports are defendant self serving claims that he had a troubled childhood his cousin didn't comment upon it in fact defendant didn't comment upon it when he read into the to the court his letter indicating why he should be sentenced at the lesser end of strange so although the reports may have had some information regarding a troubled childhood they the only proof of that is from defendant's mouth himself and he could have said so to the court when he appeared for sentencing so respectfully the statements in those reports are very little evidential value and wouldn't have necessarily established mitigating the doctor for what if  who heard the entire sentencing proceeding heard all those fast heard much of this new information although he did not have the reports the strug was able to review the claims that this defendant had a very hostile childhood and was a product of that different outcome at the reports of this i think that presupposes that he would have found that those factors applied based on these reports and in light of the state of expert report to the contrary i submit that he would not have reached the a mitigating mitigating factors would have been provided clarify the record a little further i believe that there actually were three aggravating factors that were found one six and nine aggravating factor one is rarely found in my experience which i recognize is not part of the record but aggravating factor goes to the heinous nature of this crime and defendant here he planned the murder of his girlfriend he brought the knives with him on the day of the murder he stored them underneath the vehicle he waited for her to leave her job he perceives again to an argument with her and then he stabbed her and the judge found that the facts of this case were so heinous as to find aggravating factor one now admittedly the court stated that it gave that little weight but it still is a very strong factor and although a simple analysis would be to say that there were three aggravating factors into mitigating factors and look at the pure numbers the way that the sentencing judge is supposed to evaluate this is more of a balancing and not hear a numerical situation where you have three on one hand and two on the other but to really weigh the value of them to look at whether or not they're stronger whether or not they're weak factors and determine a sentence and respectfully i would submit that even eth mitigating factor for workable in this case it would not change the sentence what was the sentencing range here it was thirty to life which would be a believe seventy five years if we're to put a number on been life which i believe for calculation purposes is at seventy five years so this clearly is at the lower end of the range which the judge stated he wanted to do and while another mitigating factor may appear to say well he was at the lower end of the range if how do you respond to your adversary's argument that there is not sufficient evidence to conclude there was this strategy behind not offering these reports in connection with the sentence whoa an evidentiary hearing surely would have shed more  division the computing expert reports the court was able to review his prior conduct here counsel had submitted folders worth of i believe letters of recommendation on behalf of the defendant he called from his cousin to testify and had defendant testify this wasn't the cursory evaluation and i think that the court can and in this situation properly reviewed everything and determined that this was in fact strategery and i will admit that but an attorney took the stand inside yes this was strategy i thought x y and z there would be no debate about it but i don't think that's necessary in every single case i think courts can make every inferences just as jersey when evaluating evidence and defendant needs to do more than just show two reports that the attorney had and just did not resign do you think we should go but i do think we should take anything from the fact that some of the cases your adversaries cite really focus on a failure investigate yes  defendant has never alleged and based on the actions of counsel it is in my opinion it's clear as the courts have found that counsel formed a sufficient investigation and gathering all this evidence i believe that should be weighed against defendants claim that this was not in fact a strategy this is not had a extensive record describing his nightmare schild hood and that he was how they order line mental deficiency it's not a situation where counsel failed to investigate the phone it's a prior conviction now sending the state's intention to use it i would submit that this is clear that counsel thoroughly investigated this case developed a strategy which was to streamline the sentencing hearing to put forth the best mitigating factors the ones that he had he'd most likely to obtain and to go from there and rather than introduce these extra reports that were created for something else created for a diminished capacity defense that it was proper for him to evaluate them looking to determine that maybe these reports aren't great especially in light of some of the comments the defendant made to his experts at the time comments such as the fact that he thought of hurting the victim before work on that day further showing that it was preplanned and not just something that happened comments to his cousin asking her if she saw the movie primal fear with a guy killed someone faked insanity to win the case essentially what defendant almost attempted to do in this case there are a lot of situations or a lot of in this case and in these reports that were harmful to the defendant doesn't he think we should focus on the investigative aspect of this is in other words supposing we were to say this is incredibly through very professional meant district was stricken standards and then its council's decision whether or not to submit the report is it enough or do we also have to look at the report and say it was an incredibly thorough investigation and it was a terrible idea not to submit the report well i think stopping at whether or not the investigation was sufficient would certainly help my position i think the investigation was in fact sufficient i do think you need to look at what he and i do look at both if he uncovered something amazing and failed to produce that i would be hard pressed to stand before this court and say it was sufficient that ken covered it but failed to present it were what difference do we give council's decision not to submit their work away because counsel is crucially involved this and apparently did a very thorough job here and made that election that the defendant now is contesting houses the session we will just say it's trial strategy is that i mean akin to it it's not quite a trial strategy as we're now at the sentencing phase sentencing strategy would be a not just description of it i think that counsel should be afforded deference as we do in trial strategy we think it's enough if we can look into the record and see there would have been countervailing information that would have been presented that would least suggest the strategic basis for not presenting the reports yes your honor here especially where the investigation was quite thorough or counsel put on a extensive sentencing argument in a mitigation strategy i think where the facts of the expert reports were also harmful to defendant this interstate was prepared with its own expert correct that this court could could infer that it was a strategy and give deference to say it was your it was your report filed with the court i believe our report was filed trouble the ground in terms of i think you commented upon the evaluations that he defense experts posited so it did touch upon them maybe not in the light the defendant would have liked but it did comment upon  capacity is going to have some on pleasant information and surely the state is always going to have some pre buttal information so the idea that they're merely exist suggesting that there  was peremptory obligation on the part of council dismissed reports just because he had gotten reports know that in this case yes but not in a per se kind of way we got the report you have to submit it but in the situation where as in this case where it and we said to the alan case was kind of very similar of course there was bad information and that mental health report and council next case did some invest some investigation and then failed to submit any of it and the court rejected the idea that it's a reasonable strategy to withhold bad information just because there's bad information a a first time offender who there everyone's wondering why this happened and the reports explaining why this happened and here we are this this fella committed a terrible act and the tribal council at sentencing sin from ation to mitigate against the penalty and says we don't know what he said this is just as reasonable to conclude he forgot about the office then it is because there's no evidence of what why he decided not to do it at any one factors if trial is sentencing council has reasonable evidence that supports a mitigating factor unless there's absolutely no way you should submit this you should do it because  the goal is to mitigate the sentence as best as possible and you have information that would help do that and you don't submit it for example one of the change special bit one of mr wilcox had a military background there's mitigating factor under the state's sensing guidelines that says submit evidence as a mitigating factor that he was in the military and then counsel doesn't doing the investigating he found out he knows the military background he got to this charge papers and everything else and then he bit he has a military background but he also has a dishonorable discharge for something they did while he was in the military that would change whether he would he could have evidence of his military background sure again i mean we're not suggesting t thank you very much for your efforts in this case i think it will take the matter