this case for this honorable court to review are underage and over review because they relate issues of law under strickland the appellant must demonstrate that his counsel's performance fell below the objective standard of reasonable reasonableness and he must address the prejudice element to element in this case there are three instances where the conduct of his counsel fell below the objective standard of reasonable ness and he was prejudiced the first issue was the failure of any of his counsel to vie to advise him of the right and the ability to file a motion to suppress his statements the failure to file a motion to withdraw his guilty plea after being specifically retained for that purpose and the third issue is the failure to prepare for sentencing in order to address the suppression issue we have to take a look at the facts of the case and what we have here are decides it's time to report his wife missing he contacts the officer that left the card on the door unbeknown to the appellant that officer was investigating the appellant as a suspect of sexual abuse towards his children to that end the officer tells him to come down to the police department bring his three children with him he complies he gets the police department he sits in the foyer and they take his four year old daughter elizabeth into an interview room and they leave him in the foyer with his two other children to fill out a voluntary statement regarding the wife's disappearance the officer then uses what they call a forensic interview using anatomical drawings and with the four year old daughter elicit statements that he believes are incriminating towards the appellant the officer then decides to go into the lobby and ask for the other two children  join the four year old daughter in the interview room the report says that immediately the appellant stood up and said what's going on here try to have contact with his children at that time the officer takes the power out of the public for your area and places him into a separate interview and interrogation room denying him access to his children then interrogates where did you say how did you what did you say when you put him in the interview room at that time he's the officer told him that he wasn't allowed to be with his children he jumped up and of jacket and said what's going on here and the report then says that they placed him into an interview room because the court didn't hold have an entry hearing on this issue it's difficult we're stuck with the facts that we have that's what the report says your hon when he's in this interview room there's one police officer when they start interrogating him there's no question there's interrogation this is going to boil down to whether or not he was in custody under the totality of the circumstance analysis when he finds that he's getting incriminating statements he calls in a second officer to quote witness the interview they then interview him for approximately an hour at which time they decide they have enough incriminating incriminating information they want to get it documented so they say to him will you now fill out a police report outlining exactly what you just said to us invokes his right to counsel significant is that when he was arrested the officer in his report stated that he wasn't at all surprised that he was being arrested the significance of that is that both the nevada supreme court and the respondent in this case cite stansbury versus california for the notion that the officer subjective belief as to whether or not the interrogate is a suspect is irrelevant unless by word or deed it is conveyed to the person being interrogated that he is a suspect in this case the appellant was not at all that's the quote not at all surprised that he was being arrested demonstrates that by deed it was conveyed to appellant that he was a suspect of a crime when that occurs understands perverseness california now that factor the fact that he was a suspect in the sexual abuse allegation becomes one of the factors in the totality analysis so the factors that we have in this case include that it was under us versus dickerson this was not a public interrogation an interrogation that was not dominated by police we have the three the flip side of the three factors and us versus dickerson this was not public this was dominated by police there were two officers interrogating him and this was lengthy it was approximately an hour and at the time he invoked his right to counsel he was arrested so we have that he's at the police department he's denied access to his children he's placed into an interrogation room and he's not afforded the opportunity to speak to department because he was denied access to his children when he jumped out and objected and said i want to talk to my children they put him into an interview room so what was he supposed to do with that point in time we eat and leave his four year old daughter with the police clearly a reasonable person wouldn't feel that they were free to still he wouldn't be allowed to leave the police department so when we take it if we look at dickerson what's interesting in that case is the united states supreme court said that miranda is in fact a concrete guideline for the police to deciding whether or not this i understand it the state supreme court issued an unreasonable decision that there was not  plea shouldn't then be a challenge because you've now entered a plea the distinguishing factor in this case is that nobody ever discussed the option with the defendant nobody ever said you know you have the ability to file a motion to suppress the statement here there's no physical evidence in this case so the confession is really the big hit here nobody ever told him he had that ability so it's not one of these cases where he said well i could file a motion to suppress evidence and right now they're going to give me a better deal because i haven't filed it this is a case where nobody even discussed it with them and your honor that's the distinguishing factor between someone saying well the nevada supreme courts aren't suppressing evidence like this or the mcmahon and the collective decision where the person actually made a conscious decision not to file a motion to miranda problem here your honor i can divide the sixth amendment right to effective assistance of counsel and the right to consult with your attorney i believe that the attorney would have an absolute obligation to present the defense under something's not on everything i mean obviously counsel doesn't and then every move he made on a violation of the fifth amendment your honor i would hope that's one of the things that pursue one to two other counts of lewd miss with a child under the age of fourteen and for other counts of sexual assault of a minor under the age of fourteen another one of those counts are squeezing each of those counts involving his daughter elizabeth the other two involving his daughter diana this case is properly analyzed underhill versus lockhart and what needs to be the focus of this needs to be  air in its determination as i pointed out mr mccormick was set off of six other counts resulting in a net savings to him of no last and  six life sentences with the possibility of parole with the parole eligible either at ten years or twenty years depending depending on the particular count so there was a substantial benefit to mr maccormack in accepting the guilty pl in this particular case as i said the sexual assault which he pled guilty was in an enhanced sexual assault which enabled him to have prole after ten years as opposed to twenty years if it were alleged under a child under the age of fourteen therefore there was a substantial and incredible benefit to mr maccormack in this particular case mr maccormack waived disciplinary hearing in exchange for these negotiations and the plea canvas very clearly  particularly the assertion that nobody discussed the possibility of a motion to suppress with him the plea negotiations or excuse me the memoranda of plea negotiations which mr mccormick signed an acknowledged he signed before the court says that he discussed with his attorney any possible defenses defense strategies and circumstance that might be in his favor that being the case one still has to examine whether or not this motion to suppress he would have even considered it frankly there is no basis based on the allegations presented in the federal a b s petition upon which a court could conclude that he was in custody when he made the state well my questions were you go down to to report your wife missing and they tell you to bring your kids in and then when you get there they take the kids away to another room for interview again your honor with all due respect you're introducing allegations in there on you know the particular facts in this particular case based on the fact allegations presented to the court they said there wasn't any custody so based on what was presented to  show because he pled guilty he would not have pled guilty and would have insisted on going to trial and in view of the plea negotiations and less on the evidence against him the great benefit conferred on him there's no the just wouldn't