middle district of pennsylvania the district court certified two issues on appeal both relating to mr scott's guilty plea the first issue is whether trial counsel mr martino was ineffective for failing to withdraw mr scott's guilty cui promptly the second issue is whether the district court erred in not allowing mr scott to withdraw his guilty plea before it was accepted i think that  post these issues in context it's important for the court to understand three what i perceive as critical time periods in the life of this case this is an older case it dates back quite a few years but i think the first critical time pay to september twenty eighth two thousand conclusion of the change of clearing the district court deferred acceptance of the plea pending review of the pre sentence report now time to forward the second time period out asked the court to consider as critical is roughly october of two thousand and seven through up to august fifteenth two thousand and eight what was happening in this time period according to the record in this case is there was correspondence and discussion between mr scott and this trial counsel about withdrawing his plea now it's undisputed that trial counsel did not make a motion to the court prior to august fifteenth two thousand and eight sixteen of the third time period august fifteenth two thousand and eight there were two court conferences on that date the first was off the record it was not transcribed that conference was between counsel for the government counsel for the defendant and the court and we now know based on the record made in this twenty two fifty five proceeding the trial counsel notified the court that mr scott wished to withdraw his guilty plea there's then a an interim period and then there's a second conference which was on the record in transcribed during which the district court notified counsel that it was accepting the plea and a binding plea agreement and that mr scott would have to move through counsel in writing to withdraw his  now what i perceived a threshold issue in this case when i was filing the original brief and not pressured issue as i characterize it to the court was when did the district court actually accept the plea and when do you say they accepted the pl aug fifteenth two thousand and eight in the second on the record conference but having had the appeal the original appeal which brought up the issue of the timing of the of the  direct appeal the way the issue was framed regarding the withdrawal of the guilty plea was as follows whether the district court of used its discretion by finding that mr scott to not have a fair and just reason for moving to withdraw  different instances in the appellant's brief on direct appeal in which the appellant's attorney stated that mr starr through counsel asked the court to withdraw the plea before the district court accepted the plea now there was no record evidence to support that assertion and in fact in my reply brief i made note of the fact that the sentences in a parent's brief making that statement are unsupported by any citations to the record and that's because the record did not exist at that point i apologize or as i have a court in fact only to the record exist because there hadn't been a twenty to fifty five evidentiary hearing during which trial counsel gave the testimony in the description  that was based on and what was cited to was the on the record transcribed conference that took place on august fifteenth two thousand and eight but if you if you believe mr martin if you believe mr martinez test night how did this all happen well you're out of the district court did leave mr martinez testimony of course that's not helpful to my client when it comes in effective assistance right the first as you but again the district i did believe mr mr scott had indicated his desire to plead on the eve of trial multiple other defendants had proceeded to trial and he stated desire to withdraw was really quite a bit of time later than his change of after there had been a pre sentence report prepared and objections by his counsel i suspect judge may have been frustrated that this far into the proceeding mr scott indicated a desire to withdraw  plea and that would be an understandable frustration i think we can all relate to the position of district court was put in but mr minturn martino's testimony was on refute it and he was very clear i can say to the record portion he was very clear that he indicated to the court that it's kind of wish to withdraw the plea and then the district court indicated in the plea was accepted as does it make any difference that the district court in when she went back on the record when she went on  record on august the fifteenth used the words that she was accepting a binding agreement before mr martino stood up and said wait a minute your honor i indicated that exactly right but the the for ok so that makes no difference to you but yet mr martino's words on august fifteenth mr scott asked that he be removed so there was an a different attorney for sentencing and then there was a third attorney assigned for mr scott for appeal ok but because that attorney when the appeal could have gotten all the transcripts including the one in september where the judge says i'm not going to accept the plea yeah the fact that that could have been obtained through the appeal and i think creates the new issue for this proceeding is the on the transcribed off the record conference that occurred in the on the morning of august fifteenth two thousand and eight the only way we have a record now of what occurred at that conference was because my client filed a motion to vacate under twenty two fifty five that involved mr scott's counsel albeit maybe not the fellah townsell but that was knowledge that counsel had and harris had presented an affidavit of trial counsel explaining what occurred at that proceeding the government would have protested and asserted that it needed to have the opportunity to cross examine mr martino or to present evidence on that issue admittedly that did not occur attorney harris did not do that instead what she did was she wrote a sentence in her brief as judge fisher indicated i actually think two sentences indicating this fact and that second time period i was referring to between october two thousand and two august fifteenth my client's testimony was ok i was telling my attorney withdraw that plea and anything of the do that during the time period i was telling my attorney to position throughout mr martino testified and there was a conflict in the testimony of he described and the government obviously has endorsed mr martinez description which was this flip flopping done by mr scott one day it was let's withdraw and then it was well maybe that's not but what i argued in my brief is the court the district court ended up crediting the testimony of mr martino on this issue and rejecting the testimony of mr scott and i think the error in doing that a mr martino was testifying in the seven enter a hearing seven or eight years after the fact from memory where there is contemporaneous evidence which we presented to the court you can find it in the record at appendix page one sixty eight a july two thousand and eight letter from my client to his attorney saying withdraw my plea it's handwritten i can it's a little hard to make out but there was testimony out of about it at the hearing and withdraw his plea i told him that was bad bad or a bad idea don't do it and so then he would go up again but that was mr martinez testimony however i specifically asked him of the evidence you're hearing about the time period between july eighth two thousand and eight when he received this letter from mr scott and then august fifteenth two thousand and eight and i think mr martinez testimony is a little big about whether he actually met or spoke with mr scott between those two things certainly i agree judge out he said at various points there was back and forth on the decision whether to withdraw the plea but if you focus in on a much more generous testimony about the time period given that he had a client that was vacillating between whether he wanted to withdraw his plea for help or did not want to withdraw his plea it is it is clear from mr martinez testimony that the district court take credit at the twenty two fifty five hearing that this was a pattern of dealing that he had established with mr scott where mr scott would write him a letter communicate in some way i want to withdraw my plea but then when mr martino did his job as a defense counsel and talk to his relating in part information in the room or should eighteenth two thousand and eight rather i believe it was he did in part incorrect information that was just in the letter however he then followed up with the meeting in his testimony the twenty to fifty it was before he had his meeting with mr scott he did the research figured out that that he was wrong and then when he talked to mr scott at that time after that march eighteenth ryder made it clear to mr scott but he was wrong and that  you know he could which all but he didn't think it was a good idea for a variety of other reasons and this obviously convince mr scott to change his mind on withdraw all this then apparently continue to happen and yes we do have the july eighth letter that opposing counsel referred to that letter is not as unequivocal as as she's made out to be however if you read through that letter the first half and again it is somewhat difficult to read you have a lot of talk about i'm not taking responsibility next to act the fool not taking some time for shit i didn't do that seems to be then he wants to continue he wants to talk to his attorney about this issue before the attorney was running off and telling the here they did not the court said on the record today except to play when i think the issue is whether it did or not back in two thousand and seven well and at that point the court said hours after question well yeah i mean one of one of the issues that contention was at the time plea hearing was held it's not clear what the court it now the government has conceded that it was not until august in fact that the court said it really but then again you have it in that  initial change of police hearing had said well i'm deferring acceptance of the play and then yes that would formally accept it later but there's a little difference between that and saying that there is a hard and fast rule that you have to specifically say that it is accepted search that's where that's the issue on which the circuits are split where you know i don't believe that there is a circuit split actually if you look at the facts of the cases what you have is you have some cases let's say where the district court says something explicitly meeting that they're not accepting the plea using language admittedly the same as what we have the court doing here in september of zero seven saying we defer acceptance of the plea there were in two of those cases  was correct that is councils in action forecloses ability to withdraw his plea for any reason or no reason why isn't that enough itself constitutionally mission performance really did want to withdraw his plea sort of the facts of this case you know again he had such a belief he did do everything that he could have done at that time even the way his client had been behaving if we're talking about a hypothetical where the separation of a constitutional right if you had no reasonable basis for doing so then yes there's a problem united states would argue here that nothing martino did or didn't do resulted in that instruction because there and of course it's problematic that was off the record because we don't know exactly what happened there we do know two facts which are salient to the point about the timing of the judge accepting the plea and or the agreement yes tito testified that he went up there and heard this conversation in chambers with the judge and with the usa said my client wants to withdraw his plea but we also know from what the judge said at the very beginning  knowledged by mr martino of the on the record conference that day she said that as i've indicated to the parties earlier i what you can take from that i think is that during that conversation you had the judge communicating she was accepting the plea agreement and you have mr martino indicating that it's going to withdraw the plea we don't know and what nothing mr martino says makes clear is which happened first it seems to me if you put all the pieces together if you put all the pieces together here you know you think you can stop anything that the strongest point in your favor is a previous litigation board and i and now if you you know even if it's the first thing he gets to say and off the record conference he's to lay down sounds to me as you know the civil litigation strategy it sounds like with the fourth acceptance that you know you ran and said perhaps it's on me for having confuse the two questions but that is exactly the point i'm trying to make which is if the judge off the record at that earlier conference had said she was accepting the plea prior to mr martino saying that  before the judge explicitly on the record in the second conference said i'm accepting the predicament line why isn't that a fact the support of the clique that is he knows that part of me he knows that his client wants to withdraw he should have taken the action the first thing i do when i walk into the court is on the record say my client wants  withdraw because i presume your position would be that and he said before the judge would on the record that i accept the plea no judge my client wants to well the plea that that would have been sufficient time for the  if the timing was slightly different at the on the record hearing and martino essentially beat the judge to the punch i say on the record before the off the record just a little while ago when you first came into my chambers i learned you know i was accepting the plea when merely going in at the very beginning of the on the record conference and saying that i mr martino's part would not have been an artist you want to question basis upon which you can be an exception to the previous litigation war based on a test of our i don't think on this case because again as as was observed earlier mr martino was available for questioning at the time that that previous issue this very issue was raised and so wrong opposing counsel might argue there was nothing on the record but mother it will be true but that didn't have to necessarily be the case and so if you're going to raise the argument at that point i think there is some responsibility to go out and find evidence marshall that evidence to support the argument if it wasn't done it wasn't done how would you do that though in direct appeal well you could certainly expand the record in some way but again even even once we get to the twenty to thirty five you look at the information that was actually brought out from mr martino and again the united states position is it doesn't really clarify credible but when we switch gears and we talk about the second issue and the potential error by the district court the government distances itself from mr martinez testimony i think what's good for the goose is good for the gander if we're crediting mr martinez testimony as the district court did then we should examine his testimony and his testimony was hey i walked into the judge's chambers and i advise sure and usas abroad that my client wish to withdraw his plea his testimony then why as the judge told me to go back and talk to my client again and make sure that's what he wanted to do then mr martina's testimony was having received mr scott's of affirmation that that was his decision he went back to what was then be transcribed on the record conference and we know what the record is from that so we're either all in with mr martina's testimony or not now judge fisher with respect to your point and actually judge greenaway as well if what happened at this chambers conference the off the record portion was essentially simultaneous comments in the same moment that judge cain wanted to announce that she was accepting the plea in the plea agreement at the very same moment mr martino wanted to announce to the court his client wish to withdraw the plea so we have two comments passing over each other if that's actually what happened i don't think protests should be who got to the punch first i don't think that's what we should come down to when we're talking about a defendant's right to a trial right so the fact that a conference to the way so it shouldn't be i think that the in this particular case i'm not trying to suggest to the court what the rule should be although i do want to come back to judge ross question about what degree of clarity should be required from a district court in this particular case the fact that the testimony the un refuted testimony was that a conference took place during which the district court was told that the defendant wish to withdraw his plea before she had formally on the record accepted the plea the answer should be the defendant at that moment had a right to withdraw and spring for any reason or no reason and it was an error for the court to deny him that privilege lastly with respect to jones roth's question i think it would be appropriate for this court to announce a clear rule it would be frankly beneficial to district courts and to litigants that a formal explicit substance of a plea is required on the record this case the history of this case could have been avoided quite frankly if the district court had simply done something very clear on the record back in two thousand and seven either expl march two thousand and eight the record shows that mr martino said i want a letter with mr advice about the ability to withdraw the plea mr martinez testimony in the evidence your hearing was he corrected that mis advice and time marched on and in fact mr scott later wrote a letter the july two thousand and eight letter that i'm pointing to and said yes well i want to do that i want to withdraw my plea i believe mr scott testified but he was very clear about the fact that he was permitted to withdraw as plea for any