petition first stage because the defendant presented the gist of two constitutional claims that he was deprived of the constitutional right to the effect of assistance of counsel the first being that the trial court erred by advising defendant that t and secondly that the trial counsel failed to subpoena d c it best records or all the defendant's brother to challenge complaining witnesses reputation for truthfulness now when we're dealing with a first stage dismissal i believe that there are for what i will call guide posts that help in the analysis that this court must perform the first is that the standard of proof used a no the second guidepost is that all the defendant is required to present at this time is the gist of a claim of the deprivation of a constitutional right in hot as the supreme court basically asserted that this is a situation where the defendant defendant my show that trial counsel's performance fell below an acceptable standard reasonable this and that the defendant was prejudice five and finally the fourth thing that must be kept in mind when evaluating a petition the first  is that all reasonably pled allegations are to be taken as proof and i think that's probably an appropriate point to begin the analysis of this case in part because at least as to the first argument raised by a defendant regarding the analysis trial counsel regarding the speedy trial imitation the state in this free vis conceded that taking these facts as true it is clear that defense counsel provided to fish in the box and so under the first seems to be to abandon taking the defendant's allegations as true and challenges them where the state says that there is no way that defendant could have possibly believed after the trial court ruled that speedy trial was still an issue in fact the trial court ruled that the speedy trial had been told on the seventy second day when the defendant filed the petition seeking and fitness evaluation and so the state argues at this stage that defendant did not agrees nibley believe that he still had an argument to make and therefore could not have rejected the offer that was made on the basis that he thought he still had a good argument under speedy trial the first thing that i would say is that this seems to conflate the first and the second stages of review in that it no longer takes what the defendant is saying is true in his allegations that this is what he would have done instead it requires that the defendant show that he has a substantial air of but that's not the first a preview of that second statement the second concern that i have about approaching the argument in that way is that it seems to obviate the need for appeals in that it says the trial court must have been read defendant must know that he was right and at that point stop believing what trial counsel was tell but we speedy trial rights of the so in this way you know i don't think that we can simply say well the court has ruled and so defendant was at that time imputed to have knowledge that in fact he did not have a speedy trial court to rule otherwise would suggest that any time a trial court rules then the defended should listen to the advice of his counsel but every day you sit and hear cases where trial counsel makes a mistake or or makes a mistake you know without that sort of bog standard that we're going to change the need for a poet course we're also going to change then the duty that the defendant has or not so much the duty the defendant has but challenge the credibility of the complaining witness or to use defendant's brother who had it at napa david sued to and again the question is has he presented an arguable point but one that is likely to succeed very similar to itas again the supreme court case which says that the threshold at this stage is simply whether the gist of the claim was presented one that was not delusional but presented an arguable legal claim regarding the deprivation of the constitutional right in this instance the state argues that even if this were available to defense counsel that the claim that the defendants brother was making rejected his story in the past because he is not ever he has a reputation of being a telemarketing now the state says well a single instance is not in this bill in court because it has to be reputation but the presumption here has to be and the treatment that is always given to defendants and to the affidavits that they attack is that they are not legal experts they don't know the proper way of framing an argument and the presumption has to be that effective trial counsel would have known how to ping by an attorney this would be properly done and what we're asking for at this stage is that the matter be remanded so that counsel can be appointed and have the opportunity to properly shape the pro se petition and then proceed to the of course the first is that council misrepresented this mini trial clock in the issues and defendant claims that he went to trial because of these mere misrepresentations as counsel stated earlier high as the of prejudice and people submit that there is no prejudice presented here because the record positively rebuts any claim that the the advice given by housel caused the funding to go to trial after the motion to dismiss hearing counsel filed a motion to dismiss on speedy trial grounds that was that was denied by the trial judge it should have been at that point abundantly clear to the defendant and the counsel that defendant's video or trial argument did not have a chance of winning the state presented what defense counsel call a c us seemingly accurate timeline of events didn't fight this issue anymore after after acquiescing to the timeline he under this they presented case law presented the timeline and i believe at that point based on my recollection of the record which is a at that point again it should have been abundantly clear that there was no speedy trial argument this point and there's nothing in the in the petition or the affidavit alleges that counsel ever told defendant that that if he goes to trial and loses that this will be reversed on speedy trial grounds and even more importantly counsel never told it was not alleged that counsel ever told defendant after the motion dismiss hearing that the speedy trial argument still had a chance to prejudice in the fed and i think we need to look at the timeline the fact that something changed between the fall of the advice and defend his decision to go to trial and not feel guilty what happened in that in the meantime there is critical in the meantime counsel true but that's not provided by the record he set the fine and said that this plea was still on the table well he wanted to plead that's what he's arguing you want to do he could have taken it at that point he knew a speedy trial argument was that this are if this please the on the table or further specific example of when he crashes by and told his teacher that is his father before him the people submit that this was the record rebuts this claim because the brother s affidavit that ye consulted with counsel prior to the trial consulted with counsel and discussed these issues therefore the only conclusion we could come to is that counsel knew of this testimony this potential testimony and he chose not to call the defense brother that's trial strategy and that those types of decisions of course are on a salable list that strategy knew of it chose not to do it that can't be that's that strategy and moving on to the to state later said that they gave the defense quote everything i have later at that same hearing the judge continued the matter for the parties to work out any further discovery issues and then i believe it was four or five months later in september the judge asked as a as a kind of a preliminary matter of this are discovery matters taken care of and then defense counsel said there are no issues that i'm aware of based on that statement people w that counsel's response that there were no discovery issues that he was aware of indicates that he was satisfied that he received all of the c f s documents that he had previously requested he request them that's clear there's really no possible way th you're just talking about it which maybe they did the same will be the purpose of trying the case again we're not saying he was convicted because trial i mean does that make any sense that you get a new trial because of this pretrial thing that have nothing to do with the trial itself well the same the same considerations are a play for both sides of that stay here of the state looking at the the risk obviously it was worth something to the state to offer a term of years that was less y right when the trial court said there is no requirement that there be any sort of negotiation now they could have pertain to the trial judge's perception of what had happened the trial but it could also be a statement about you know if i send it back the state doesn't have to make that offer and so i think that the state earth i'm sorry that the trial court may have been wrestling with the same concerns but i think the part of the difficulty there or the reason why i should go back for a second is faith proceeding his that it's getting somewhat better than was and that's true for both sides as well the the state certainly has an interest in discussing this at the second stage in terms of whether it should proceed past that and defendant has an interest in seeing that counsel have an opportunity to to address that issue and perhaps to reshape the second issue or the first to phrase it in ways that account for some of the concerns raised but i stepped up here initially just to say that there is nothing in the record that positively rebut either claims there may be things that suggest arguments and counsel i think has has made some very good arguments today but they 're factual arguments that again go against where we should be at the first stage which is to take those facts as true the defendant statement that he made a decision not to continue negotiations because of the missi counsel which is admitted really efficient because of that defendant deserves an opportunity for remember a second stage of proceeding and at that point try to sort out the how to how things should go from there if there are