important for this court to consider is the threshold issues on the waiver of the right to appeal to question is what actually transpired what were the issues that led to the to the a waiver of appeal that's one of the critical issues that i think has not been fully addressed by the state court or the district court in particular i brought this court's attention to the issue that mr sanders raised pro se regarding how he termed  and there's a few other terms of art that he used which we may not have chosen but i think the argument that he was trying to make and that is appropriate for this court to consider is whether or not  question the timing and which the offer of the waiver appeal came about and the underlying criminal charges that the prosecutor claimed that they were she was going to bring against them when they happen i think that that's critically factually because if i drive this court's attention to the fact that the alleged witness tampering occurred in a pretrial hearing not during the trial and also the issue of the perjury the question of what he said on the stand well it during the trial that if you're looking at the facets really you know he actually it could've been taken many ways but whether or not  sentence sort of like if you give up your right to appeal will make such and such a recommendation is there any is there a general is very case squarely in place on whether that's permissible went to the point of the grain that there was there was the right away and i think there's a washington state court state the suite i think that was cited in the briefing five member correctly on the fact that the washington state courts have certainly given the right to weigh the right to appeal which brings us to an interesting issue and as i would say it is ok you go through a trial you have a very curious and i think the briefing talked about this and you get found guilty and there is arguably as we've argued here that they're leading to this finding of guilt was ineffective assistance of counsel which then gets into another complex issue but the thing that i troubled by that i don't really know the answer to quite honestly is one level of knowledge for example what level of knowledge in us comes in to any issue of the waiver of a right to appeal looking at a plea bargain before trial you know the individual has supposedly all the information before him or her to make an informed decision and has a period of time and can look at it with at least some hopefully dispa assistance of counsel this is much less structured i mean it's like give up your right to feel we're going to throw the book at you right then and like my question of which i don't know if you were answered correctly is this i know that there are cases thing of a person can give up their rights can waive their right to appeal but are there any cases saying that they can waive their right to appeal in exchange for a bargain and that the prosecutor will recommend a low  issues that i had to tussle with because it and this is kind of where i opened and i'm trying to lead into the problems that this case gives both procedurally and in terms of the law because and that goes to his claim of innocence and then that raises the issue of cause and prejudice and is the ineffective assistance at a trial level and can lead to at prejudiced but as for his telecast we did also argue at least he attempted to argue i would say that his appellate counsel are not to strike that because he had new counsel for as opposed to a trial from his post trial counsel was ineffective and i think this also then also ineffective in waiving the ineffectiveness of the track i respectfully do not reach that same conclusion your honor and the reason is is that i do not believe that you have to make an ineffective assistance claim if you're arguing that the voluntariness element of a waiver as been violated by the circumstances of the trial level at least  fletcher is giving one way to get there you may have others out so well that's that the difficulty with the case in the sense of trying to argue it is because there's various ways to get there and one of the ways to get there is which i should have been addressed at the various court levels was the issue of the relationship with the defendant with the prosecutor and exactly how this particular sequence of events came about that he would ended up taking the waiver i mean to have a prosecutor television individual that based upon asking for stuff they're going to and various things will be the end for the rest of their life i mean i would argue that that exceeds the scope of the reality of the sentencing under washington laws analytic cedes the prosecutors charge under the prosecutor's you know duty to do justice under you know ethical issues they shouldn't if they're just overreaching take the general proposition for a minute whether due process precludes bargain with certain thing that requires a defendant to give up an appeal in were the issue is it precluded by the supreme court's precedent says you can't you can't give someone a stricter sentence without particularized reasons in punishment for having an a ppeal the second time if they're if they're convicted after green then that means if you can't punish someone for taking an appeal then you can't threaten to punish them if they don't waive their view seems to me that's kind of the gist prosecutor maybe the prosecutor does it reasonably and they're just saying we're going to urge the maximum consequences for you for everything you've done that's wrong if you don't waive your appeal you know impropriety on behalf of the prosecutor of apply the same issue that wasn't argued well i thrive at their worst case but anyway i think my issue on here i mean we're talking about in north carolina the pierce type argument and i think that it is clearly established under supreme court law that there are certain circumstances where there is shall we just need a little overreaching and that under that kind of standard where one is threatened by a  factually than that is considered a violation of due process i hear you have a situation where you threaten with a higher sentence unless you give up your right to appeal i would say the north carolina v piers arguments that michael and has a very through the whole period of his pro se litigation by name is appropriate to this situation i think it's pretty good argument it's a little it's you know one correct appeal and i would think it say that the principle is clearly established under supreme court precedent when we were playing the principle in a slightly different context i think if it was a situation where north carolina pierce was only used in like a couple of situations a couple of supreme court cases maybe one maybe two for say that would be vic that would be arguable but because north carolina replete through case law as the standard under which these various scenarios are judged and its expansion by the supreme court and the court of appeals including this court would argue against the state's position but i'm very much troubled by this case if there were underactive feel i would apply in a straight line if the peers and i could be wrong but i would think it would be a fair analogy here and i'm not sure very deep let me ask this is this the general practice and i mean is this like an odd case that has just occurred for whatever reason that it came up this waiver or is this a routine practice if you  are i used to be a deputy prosecuting attorney i will tell you that it is not a regular practice i have seen it done but i cannot say that it's done in every case or even on a regular fashion i think you know  the elements of those charges that he's making a deal giving up something to be freed and then there's an delineation of their elements or the maximum penalties for him it's just sort of in this  and understanding fully the uncomfortable with the effect such a word from the bench about what the discomfort of the suspension with this process and again difficult i don't believe it's a general practice i have seen it happen but i have to emphasize to this court there was a choice by mr sanders he could have told the prosecutor no matter how attractive that offer was well recommended exceptional sentence down of thirty six months because the prosecutor thinks to herself hypothetically i am making this a hypothetical minds have positive gosh but i question that witness for a lot of the admissible stuff came in when i put that into evidence that wasn't done correctly there was insufficient foundation i better protect my case and make sure the string doesn't go up any further let's just put it t of these difficulties without trying to directly and that is obviously what what mr sanders really wants to do is to be allowed to present an ineffective assistance of counsel argument because he's now saying i've got all this stuff that should have been says nothing about prohibiting him from filing collateral the prosecutor's deal here is going to lose three i think a looser a deal that would preclude him from direct appeal but it wouldn't stop him from a state collateral proceeding or a federal i think that would be factually correct but that doesn't seem like that could be what the prosecutor at mind to me but it may not have been and maybe i'm reading this with twenty twenty hindsight and my office is a hideous attorney and i'm not the d p a you sitting there and i understand the position and i do well that's possible your honor and i think that i don't agree with the court's contention but i understand we're going at a certain point i would submit a person has to live with the consequences of their choices and  has with all due respect is viewing this issue in a very limited perhaps unbalanced fashion that mr sanders has had placed upon  burden that based on due process he should not have and i would respectfully submit that mr sanders for the told the prosecutor to go fly a kite i'm going to keep my right to appeal but he he said in a comically i don't want any more charges he wanted everything his way you certainly not a case that says you can waive your right to appeal generally but a case that says that particular scenario or for procedure that's a large tear does not offend due process i'm trying to recall the exactly where someone is giving out certain rights for threats for punishment i do not believe there was a further issue in that case about the judge taking an active part of the  would remind the court that the judge was at least somewhat involved in the none intentionally in terms of you know what would happen i think that the the real issue is i mean it's some point in time is there a situation where there may be considered overreaching just do the procedural posture of the case and i think that's what the court is raising because of this sort of this point in the case of due process concerns given the fact that someone prejudice or or actual innocence of the schlub standard or it can't i think that my client and i have to talk with and would prefer that this case go to an evidentiary hearing to determine on the merits whether there was overturned it on the basis of a pierce violation than certainly that you know in all honesty there's various options this court can employ i would argue on the basis of that that the  issues of timing and whether or not there was real choice