and he further found that trial performance was deficient in light of his failure to investigate any of the childhood abuse or making strategic choices however he didn't he found that there wasn't any prejudice childhood was absolutely relevant to whether or not mr oakes was eligible for the death penalty because it would have affected the way that the judge viewed the others in the case and also mr osis state of mind at the time of the court known about the cruel treatment that mr oakes endured a regular basis and that he viewed as a way of life he wouldn't have seen a stroke his actions as cruel and cold blooded are shockingly evil or intentionally seeking to inflict pain and suffering onto jerry nelson he was just acting in the way that he had been he had been treated as a child and that he saw his parents treating him in his that once he thought it was how you discipline  in fact there was evidence at the evidentiary hearing that mr oakes never seemed to think there was anything wrong with the horrible treatment he received from his parents he never complained about his treatment it only made him try and please the parents more his siblings by comparison ran away at an early age or live with neighbors mr oakes didn't do any of that he simply stayed at home and continued to try and please parents and game their love and acceptance considered shockingly evil intentionally seeking sex inflict pain and suffering a fool or what it means that we would agree with you  so it's our position that it doesn't it doesn't affect it at all and at this point this court could remand mr oakes this case for further sentencing proceeding if this program determined that these actors are indeed relevant to eligibility he could have another eligibility hearing and for their sentencing  this if the score doesn't have any other questions on this issue i'll just conclude with the fact that if the if that defen of mind i think you have to i think you have to look at the situation here i think each case would be different but here we're looking at the situation that mr oakes was presented with he had a child he wasn't behaving and he reacted in a way that was quite frankly much less severe that his parents had treated had treated him he had been the victim of abuse much much worse than that what occurred in this case so i think you have to look at the situation occurs you can say oh well it's always ok or it excuses everything we're not saying it's ok but that there was a murder here and there's no doubt about that but what we're saying is that there wasn't that additional requirement that this court needs to find it was exceptionally brutal heinous indicative of wanton cruelty he didn't have that intent to inflict pain and suffering he was simply reacting so and in a way that you've been taught dangerous well there was no there was no evidence in the record that he had that he was some ruthless cruel individual or children in fact i think there was evidence that he was the most part he believed that the issue was raised to the heart and with respect to the choice of counsel issue he thought that the sonority been litigated but that was in the record this issue was in the pro se petition but it had not been included in the amended petition filed on his behalf so here only if lee believed that it had already been litigated and he didn't have the discretion to allow mr rhodes to file the claim and that erroneous belief that he didn't have exercise discretion in all the ways that it only could including allowing for the filing supplemental of the supplement claim so i think that when the when the trial court or when judge merely repeating what judge of honor had said i think as pointed out with a brief that the question before the poor was whether there was a reasonable excessive conviction the titian here the judge had the authority to allow him to file a supplemental supplemental claim that is there's no that's not going to prejudice the state or cause this be included and that this be decided but it was a minute for reasons we don't know from the amount of attention so in the interest of fairness he should have a chance to have that issue decided by by court