sure hearing for two reasons first his petition was timely and second he made a substantial showing that he received ineffective assistance of counsel when addressing the first portion of the argument the timelin sure there are several reasons why mr prince petition should be considered time and primarily backs because he should have had three years from the date of his conviction to file a petition and he didn't fact file his petition in this time  the ross court explains that in a situation like this where you have a petitioner who pleaded guilty he didn't file this post plea motion and then filed a notice of appeal and that situation is actually tantamount you found guilty and therefore he had a direct appeal on the merits which was resolved by the court and therefore under the plain language of the act and the court's opinion and ross mr berger should have had explains that you can't even properly file a notice of appeal or file any sort of direct appeal if you don't have the motion to withdraw guilty plea five well he even i have the notice of appeal so obviously you can final a notice of appeal but your position is that because the public court didn't have jurisdiction to resolve the merits of the deal yes how many and again the ross court explained that in that scenario like we have here where defendant improperly filed a notice of appeal which is which is not the phrase in the act it doesn't at specifically point a filing of a notice of appeal at points of filing a direct appeal and the rock court explains that in this scenario g mr byrd to plead guilty to the attempt counts and that's because the states did not and based on the record we have could not show that that there was a factual basis for this charge state charged mr byrd with attempted armed robbery with a firearm and therefore they would have needed to put forth some evidence in their factual basis that he in fact was arms with a firearm but they didn't do so at the are not in this case because the state actually details pretty clearly listed the nature of the counts listed the locations of this string of armed robberies listed the first four and talked about the attempt how specifically for the attempt counts and additionally when you look at the conviction petition there is the grand jury transcript receiving attached to the post conviction petition where the state's detective actually charges so there's a reasonable probability that mr byrd would want to withdraw his plea to this very serious charge even if there was the possibility that he would be facing prosecution for a last severe charge i'm section five dash dash or do you which talks about the reasons for mandatory consecutive sentencing and you look at the information that we have in the record right now and there's no indication that if mr byrd went to trial he  required to have consecutive sentencing so again it would be reasonable to conclude that he would withdraw his plea to and sort of take these consecutive sentences off the table and because even if he was convicted of cowards at trial and that were involved in the plea he could have concurrent sentencing and end up serving last time overall in prison so that's that that's another reason that there there's a reasonable probability that mr berg would want to withdraw is entirely and again that ties into the final reason that counsel was ineffective pleat counsel for failing to actually move to withdraw excuse me file a motion to withdraw the plea under these circumstances and for all those reasons mr byrd would them argue that he made a substantial showing that he received ineffective assis quite clear if you look on the stage before page four it sets forth the three scenarios that it could possibly apply the first involves filing a risk to the united states supreme court which did not occur here so that scenario is out the third involves as your honor was getting out to say there's whether a direct appeal whether defendant filed a direct appeal here the defendant did file a direct appeal so that negates scenario three that's the only scenario left is the second one which requires the alternative argument to apply that counsel support them now in regards to the scenario three and not applying and johnson the illinois supreme court explicitly stated the statute even provides a three year guideline for filing a petition with no notice of appeal is filed a notice of appeal this explicitly stated there as such the state requests t that ross this was a two thousand and four i believe second district case that occurred over ten years ago it was a different version of the post conviction just in hearing act although not substantially different from any reason moreover recently the first district although this is a unpublished case i'm just stating it for persuasive authority to support my position bradshaw twenty eight thousand and eleven first one five two nine eight nine the negligence here is defendant's burden to prove that he was not cause of lee negligent in the strain something greater than ordinary negligence and as it can direct listen this here defendant's failure to determine the proper deadline scenario was a result of his own culpable negligence as ignorance of the law is not an excuse or over the postcondition during hearing act clearly states in our three three year deadline only applies when defendant does not file a direct appeal it was defend as it was filed over six months past the due date of scenario two this was clearly something greater than ordinary negligence and defendant's main argument and this issue hinges on the notion that he was not culpable for the  still have this attorney for thirty days and if the attorney files a notice of appeal if that was the proper headlines although it was not explicitly proper i would say that the trial court substantially implied  defendant made a substantial showing that he received in effect of assistance of counsel and the state fails that the senate failed to prove these shellings to establish an effective assistance on a fails to prove both problems in regards to the first issue it's the sufficient factual basis for the guilty plea on count five as set forth in the state's brief on page twenty to twenty one the factual basis set forth for begum and as your honor justice over white stated the state began by saying there were a number of armed robberies that occurred throughout four months the attempt armed robbery  was then those four months although when they explicitly discussed that count they didn't say whether he had a gun or not the overall context of the factual basis shows that he did more  in fact acknowledge his part in armed robberies and did in fact identify the defendant as his accomplice or the second entered will in the robberies and match the photos of the two that were done singularly by one individual which was the defen defendant common sense would show why would you leave guilty to offense that you didn't commit the defendant didn't commit it you could have chose to not  as a result regarding the factual basis we counsel is not an effective the second and effective claim was regarding the investigation of the supposed alibi the fit argues that the council failed to investigate the state disagrees the record evidence that the council was in communication with the finance mother threw up proceedings below the day after the plea centering email later at a post i think it was the sentencing hearing he stated to the trial court that he had numerous discussions with the defense mother regarding the case and her son notably the defendant's mother was one of these alleged alibi witnesses clearly when looking at the record the overall record to support the notion that counsel properly investigated the defendant's case moreover the supposed alibi testimony does not negate the possibility that the finish could have briefly left the hospital again there's accomplice testimony stating that this man was the defendant that supports or i should say contradicts his alleged alibi testimonies moreover defendant cannot show prejudice  would withdraw his plea in this case he had all these other charges against him he even stated in his post conviction petition that he only wanted to plead guilty for the four armed robbery charges that he committed instead of six over there is no assurance that the state with even allow him to enter back into a plea he could withdraw his plea and then for example only go to trial on those four armed robbery charges but he could still get a more severe sentence than the forty thirty four year sentence that he was sentenced to with the pla further he received the benefit of the bargain of this plea deal by having all these other counts dismissed against him so it would not be rational for him to withdraw simply get a more severe sentence on these four potential counts and maybe even callous other cases that are charged against them clearly counseled continues to talk about the mandatory consecutive sentencing guidelines but they're also permissive consecutive guidelines that the trial court to apply in this community all this evidence is the fact the defendant rejecting the plea would have been irrational under the circumstances were rational in circumstances they would not have insisted on going to trial nor be successful at trial as a result the finesse failed to prove the ineffective assistance of counsel accordingly defendants post conviction petition failed to make a substantial showing of a violation of his constitutional rights as he received the effective assistance of counsel and the record refutes his claims entered a guilty plea knowingly and voluntarily with full knowledge of the charges against him his participation in the crimes and that he would be entering this deal with the other callous charges dismissed instead i'm as a result the state would request this court to a opinion and it was not cited in the briefs the presidential opinion ross the two thousand and four appellate court case when analyzing this exact issue concluded that the appropriate time limit under the act would be the three year time limit when when considering almost the exact same factual scenario here guilty plea situation where there is no motion to the trial guilty plea and so any notice appeal needs to be dismissed and none of that just to be clear that applying ross is not inconsistent with johnson and because johnson wasn't considering this precise factual scenario and and the sentence that counts of points out again would not be inconsistent with the ruling in ross the reference to the filing of the notice of appeal again the post conviction hearing act ties  someone is advised to plead guilty to an offense they did not commit that the state could not provide a factual basis for and therefore for those reasons of counsel again on the final two counts advised him to plead guilty to charges where there was no factual basis or that he would have had an alibi for that would be ineffective assistance the the information that counsel points to about the communication with mr birthmother in this case again there's nothing in the record showing that that communication actually resulted in counsel investigating this alibi before he advised mr byrd plead guilty and again th no evidence in this case if you look at the plea as a whole that mr berger be required to serve and you sort of mandatory consecutive sentencing at this point there has not been any development in the record that he would even be eligible for concurrent excuse me or permissive consecutive sentencing and again that's something that may be developed an evidentiary hearing but when you look at the record at this point it does not indicate that mr byrd would be subject to