his attorney gave him that advice at the time that he was contemplating whether to have the court instruct the jury on the second degree instruction in his petition post conviction relief you said i would have asked the court to instruct the jury on second degree murder  strategically made a decision to go to the jury with first degree  sixty years concurrent concurrent sentences that if he was convicted of both murders given the facts of this case that he wouldn't he would have been sense to the lower end of that rather than natural life in prison  i believe he his position his just position is that he believed that natural life in prison it was also in the option or possibility he did not know however that that was a mandatory sentence and to him that's what made the difference here said that he didn't want to give in because he thought it was confusing to her that is what he says on the record in his petition post conviction relief he says that he made the decision not to get it because he didn't think that he would receive natural li with counsel based on the advice that i got from my attorney i believe things you should say we don't know what that advice was other than what's in the petition for post conviction and that's essentially what his argument is that yes he did say that on the had his he's kind of going to be accepting that vice in the course told him that natural life is a possibility but then his attorney has told him that he could be sense from twenty to sixty years and frankly it would surprise me if the defendant wasn't was confused by all this vice that he's getting and yes the trial record isn't really clear on what he's meaning by he swore that the jury might be too confused about it he he did explain that he was concerned because in order for the jury to find second degree murder they w that could be what he's referring to as the confusion but what garbus what he meant when he said he was confused i think in looking at the record what the defendant is trying to say at least in the petition for post conviction relief is hey there's a big difference between have you know pending here today is now the patient that he would have submitted the second degree murder instruction had he known that natural life imprisonment was the required penalty he couldn't get anything less than that your line of reasoning and answer justice terms question it who cares if the jury might be confused there's a chance that instead of getting mandatory life i'll get convicted a second degree murder charge born again he didn't and again i can't explain what he means by the confused language which he did talk about though and again i don't remember if it was in the post conviction petition work it was in the trial record but the realization according to his of the order to convict him of second degree murder they would have to first find him guilty of first degree murder and based on the trial record here back seems to be what he's trying to avoid he's trying to avoid planning any sort of scene in the jury's mind that hey please find me guilty of first degree murder maybe because we've got the justifiable use of force the self defense instruction that's been tendered to the jury and based on these facts i would argue was possible you know the jerk actually came back with a question maybe that's why the trucks were conclusive never trials where a question that's that is determined by his attorney and where the attorney has essentially came to him and said hey you like me to do and the defendant no this isn't the record but just based on what is the record this is the way i kind properly he was i believe so and everybody else and help me would in addition to that evidence what else would be presented perhaps by the state perhaps  this did he say anything to you for instance your your question regarding the defendant saying that he was confused maybe defense counsel can't explain what he was confused about maybe the defendant can be called during the third sta hearing in explaining when i said i was confused at in the trial court this is what i meant and he can explain maybe that was based on something that his attorney said maybe his attorney told him something else that was completely accurate that is relevant to the proceedings  obviously there's there's more that you know comes into play with that depending on what evidence is presented depending on what howard's attorney amends the petition for post conviction relief and what additional allegations are added i mean what we're faced with here is a per se petition proposed in which really he hasn't had the systems of counsel yet he's in he's incarcerated i don't know what the law library is like there you know we're somebody with absolutely no legal training and the the simple thing that we're asking for today  at that point i think that's the only time i can i can answer your question and he comprehensible way because there's just too many variables at this point to know what's going to happen after this case will be remanded and i think that's the very  on for second degree murder being given the jury would have been able to look at two mitigating factors and determine whether by a propensity of the evidence mr brown have established either of those two factors those two factors being whether he was acting under sudden intense passion resulting from serious provocation or whether you believe that the circumstances were such that he was justified in using force employed in self defense  h his belief was and reasonable and i don't want to talk about each of those just somewhat briefly because i think the factual circumstances on themselves in different ways to each of those two mitigating circumstances with the first one that being th the defense was acting under sudden intense passion actors serious provocation by not tendering the second preferred struction the jury was allowed to essentially stand in the shoes of the defendant as all this was happening on february twelfth two thousand  family they were playing video games when there was a knock at the door it was calvin waltz who was the brother of the defendants next door neighbor calvin one of his brother the bar was there and the defendant it's you know that he wasn't but then he enter walker the defendant's uncle believe that he recognized how between cabin walls and walker but we do know that david wells was possibly a hundred pounds heavier than montel jones was and at one point andrew walker testifies that he looks over and sees david having monteux by the neck and another  slinging him around the sling uses his own words in the record mr burns watching all of this he seen his family being attacked in his residence by two men whom the record doesn't clearly indicate he knows very well he may be acquaintances in and continue to solving his family the jury was never given the option of placing themselves in their shoes and being forced to consider what they would have felt at the time that the defendant is watching his family members be and have they done that i the justifiable use of force but his belief was and reasonable when he shoots the ball the kalam david walls eventually again he just seeing these two men have a combined weight of five hundred pounds eating his family members in his residence encounters him outside his residence and i think the jury viewing this testimony viewing the situation the struggle that the defendant testifies happened would believe that the defendant was bullied at the would like to respond to a few of the questions that were asked here in regards to the timing of the advice that the defendant received what we know from the record that we have in front of us is that a letter was sent following his conviction but prior to his sentence and in that letter counsel did indicate that he did not see mandated natural life sentences as required he said that because these murders have been simultaneous that the court would not be able to find that there had been any prior murder such that a mandatory natural life sentence would occur but that is evidence as to what was given after the conviction and before sentencing we don't know and petition does allege that had he known he would have been facing mandatory he would have asked for second degree but it does not specify when he did become aware of that information at a time other than what we know from the letter he does not say in his petition that this information was shared with him prior to making that decision not to submit second degree instruction it's to this in question i was told so is there anywhere in the re shows that he was correctly most that if he was convicted of these two murders he would fitz natural life in prison mandatory there is nothing in the record that indicates he would face it mandatorily this was not a guilty so there were not the rules on admonitions that are in fact at that time this was a sentence range admonishment that was given at the arraignment and at that time the death penalty was even still on the possible sentences that he could proce so the trial court after going through the charges was setting for the all the different possible sentences that he could receive now and then arraignment the trial court doesn't know he will definitely be found guilty of two and therefore he will be sentenced he could respectfully if he was only convicted of one of the murders but if you was convicted of twenty to sixty it was off the table correct and in providing the possible penalties it wasn't if you're convicted of both murders and the aggravated battery this is what you'll face but if you're only convicted of one murder and no aggravated battery this is what will face the court was not going through the litany of multiple conviction possibilities of existence the court was stating at an arraignment the possible sentences that w out there and no it did not at any time say that it would be mandatory if he was found guilty of two murders that it's not in the record that's not what was provided a mandatory life sentence if he was convicted of both murders what would happen if that's that's already well the allegation in the petition isn't effective assistance of counsel and so it's not just going to be enough even if we should all agree it's not he could have gotten a term of years rather than one correct but as you have as have been bandied about here today the basis for declining the second degree instruction on the record we have is not that it was because of this advice that we don't know when he received it was because he thought it would be too confusing and what i would submit as my understanding of what was meant by too confusing is this the majority of the argument today the majority of the argument in the brief has been that a second degree sudden and intense passion defense would have been buyable for the jury to find but it hopefully his defense attorney and you know as the owner of course have ruled that a first degree a self defense justification defense which is what defendant presented before the jury at trial is completely inconsistent and it negates a sudden and intense passion defense just like it was if you're given the self defense instruction that it's mandated that the trial court struck that second degree of request by the way that is correct and the court could have given the instruction but i'm trying to explain what i think the defendant member i would have been too confusing for the jury and that's the recognition that sudden and intense means it was an unplanned provoked response versus justification which is in his statement to the jury to was already said rosaline that if  under that promise to believe under the second prong that it was an unreasonable belief that the killing was acquired is to require a belief that death or injury you know was imminent and while on the facts that we have here he could not have believed that there was death or harm imminent to any of the occupants of his apartment because at the time he shot the walls brothers they were gone they had when he started shooting inside the apartment he shot his own friend three times the testimony was when his friend montel got shot andrew walker eric foster and montel took him out of the apartment to seek help for his gunshot  the testimony also so the point being on them he could not a thought in the harm or death was coming to them they were gone he could not believe that imminent death or harm was coming to himself because in addition to them being on the walls brother's work on  the bar was back to his apartment calvin and david were not only not on the second floor with the apartment was located but was on the first floor and moving toward the exit of the entire building at this point he takes that gun and he pursues that now prior to the pursuit he is standing in his apartment and empty apartments the fighting has ended whatever fighting took place beforehand whoever was responsible it's over everybody has abandoned this he's standing up armed with a gun and nobody's around what imminent threat of death or harm is there to him so he can't establish prejudice even under the second prong to an affective assistance was surprised at the sentencing he was for he was told of the possibility of it and he was told in regards to the discharge of the weapon as well as for the actual murders but he was also the possibility of twenty to six correct and if he's convicted of zero that's not that it is not a possibility and again when the court gave the instruction or the admonishments on it it was a call the possibilities of all the charges that were currently pending but given that he was clearly advised of the possibility that should have been in his thought processes when determining whether to give the second degree instructions it's not like he had never been told it was a possibility so just says he was never told he was mandatory that he would receive them if convicted of both he certainly was not told that it was guaranteed to get twenty to sixty either twenty to sixty was a possibility natural life was a possibility knowing it was a possibility or the sentence would be this i personally don't believe that i believe it was a misunderstanding on the part of his counsel i don't think there's any question as to that but the trial court was not wrong in advising as he did the  court was not going through mandatory sentences depending on which convictions would come through he cannot overcome this prejudice element to establish ineffective assistance which is what he needs to get through  assistance and that includes the prejudice which is why we get to our point here and the record clearly rebuts many of the arguments that he makes to support a prejudice argument facing but i do still under the law we have the case i still have to get past that prejudice what ever his errors were or not alone are not sufficient on their own to get him and an active assistance of the guys because you believe that be exonerated under defense he did use correct that's more likely reason why we're here today we're here because the defendant has filed a first stage which i should propose to actually a pro se defendant he has no legal training and the only thing that he is asking today he's not sure to reverse his conviction he's not motion to dismiss we can have any of the same arguments that we've been having here today but we were not here today to debate is what we think the defendant met when he said something on the record or what we think his motivation may have been because that's not  clearly appropriate i don't think there's anything fanciful about saying that had the jury belly been so instructed regarding second degree murder they couldn't that there wasn't a reasonable probability they couldn't find by preponderance of the of the same arguments i'm sure will be made there but there's a potential that this ng it's you know that you're hearing and it's at that point that we can find out what the council meant when he told the defendant your subject to twenty six years when he told the phone that i w seems fairly clear at least in the petition for post conviction really that the defendant believe that that was what he could never see the sons of twenty six years i were burying him looked at the at the petitioning councilman goes on to say however trial counsel never informed the defendant