may please the court because the state appears to be in agreement with us regarding the setting issues raised in the breach my intention today is to spend our time together discussing the first issue the trial court's decision to not appoint counsel to read to investigate and to litigate mr rogers claim ineffective assistance of trial counsel in this case mr rogers did precisely what a defendant is supposed to do when he believes he's received ineffective assistance of trial counsel after his trial before he was even sense before he knew what sentence he would receive he brought the matter before the trial court's attention and to the trial court's credit it did a proper critical inquiry that gave us the detail mr rogers claim was pretty simple it was that one of the key pieces of evidence against him this over here recording of one of the alleged drug transactions was completely unknown to him until he showed up at trial and learned about it trial the same time the court did now trial counsel never contested this allegation she never claimed that she herself had played the tape for him or described the recording to him  ad she said that in order to save time she had asked her in turn to play the recording for him now this in turn it's unclear whether the intern was in court here is probably not but we have absolutely no testimony whatsoever from the internet no statements from the interne no statements from trial counsel saying after the intern went over there i talked to him and he said that he played everything for mr rogers and this is what they talked about next we have absolutely nothing on the record about that y t the trial court determined that there was enough evidence on the record somehow in order to refute mr rogers allegations and determine that they were merely spurious and could be disregarded without further investigation almost no case law out there defining the boundaries of the possible neglect standard that's supposed to apply in these cases in murray the court determined that there was possible neglect because it was a pretty obvious case here i think that's what we have as well mr rogers main claim is that if he had known about this piece of evidence that he never would have gone to trial and that he would have accepted the offer of ten years that was given by the state and this sense in light of the testimony that was provided by trial counsel during the crinkle inquiry and she said that her trial her defense strategy was alternately to try to convince mr rogers plead guilty and that that would have been in his best interests but in this universe where we take his allegations true and he did not know about this key piece of evidence that the trial court ultimately relied upon in finding him guilty he didn't realize how strong the case is the state's case was against him he had no way of knowing all he believed there to be were the there was the word of a confidential informant who was incredibly incredible even the noted how incredible most of her testimony was and said that if the state's case was merely her word that the outcome would have been different there was that and there was the fact that he had some of the by money on him when he was ultimately arrested now the trial court talked about how the the body money was part of brian ultimately convicted mr rogers but then went on to say that it was the by money in conjunction with this reporting and that existed of him threatening the confidential informant of him talking about how she had to do something in front of him which corroborated her testimony about how he had asked her to shoot the heroin in front of him before he would allow or leave in light of this critical piece of evidence that mr rogers did not know about his case could have done either way if that recording hadn't been in existence said there was an over here and that there was a tape of a confidential source of the buy from the day in question she asserts that she had discussed that with that's not quite correct she says that she discussed the police reports including the request for it over here with them and that she discussed a tape of the confidential informant from the day of the by him and there were two recordings in this to in this case either don't have anything that was obviously a v h s tape or an audio cassette to be able to distinguish them that way what she's talking about when she says tape we just know that it's one of the electronic records and there were two in this case both of them are of the confidential informant from the day of the by one of them is of the confidential informant having this audio conversation with mr rogers and the other one is the confidential informant walking up to the defendant's apartment walking into the apartment few other people walking in and out and her walking out and mr rogers says that the intern did play that tape of the confidential informant for him when the intern came to visit incriminating that doesn't establish that when she was in the house that he sold her drugs or she claims it just establishes that yeah roughly around that time she was there so that's all he knew about his conversations with the attorney so you sound like overwhelming but why would she make that assertion based on the underwhelming evidence that you just described  overwhelming nature of the evidence against him and that she brought the offender to meet with him as well who also described the overwhelming nature of the evidence against him is that right well in that that critically this describes the the conflict between mr rogers and his counsel is forest counsel knew yes the evidence was overwhelming because counsel was well aware of this audio recording and absolutely she she probably went over there just as she said and told him it's got this recording of the confidential informant during the bye this is overwhelming evidence or you really need to take this deal but mr rogers who was only shown the recordings by an intern doesn't have that piece of information that you're assuming that ms patent did not this us the nature of the audio with the defendant and why do you assume that she never said that she did as she said we discussed the evidence on several occasions the audiobook most certainly would be part of the evidence the trial judge explicitly asked her did you discuss the audio recording with them and she said judge i never used the word audio and that's the critical thing here i don't think that counsel was intentionally trying to plea to confuse mr rogers or mislead him about the evidence against him i think that counsel knew that the evidence  overwhelming him wanted mr rogers to plead guilty but because of what happened with the inter she didn't know that mr rogers didn't have all the information and because she didn't make sure that mr rogers knew that they were in fact two recordings not one recording that's where the problem comes into play there was a transcript of the audio yes and the defendant you know about the transcript of the audio prior to the not before trial the trial counsel states on the record that you did not receive the transcript until they appeared for trial ok and is that insufficient  transcript was turned over the they put the existence of the plea offer on the record before the trial began and the state said at that time and now that we're starting trial this is withdrawn it's unclear whether the transcript was turned over after that record was made or before that record was made we only know that it was turned over the day of trial and another important thing in when we look at the trial attorneys comments during the critical inquiry she says that she talked to defend about how there is a recording of the confidential informant on the day of the box there are actually two and her failure to make it clear to mr rogers that there were two recordings and one of them had incredibly damaging audio portions that were enough to change this case from a could go either way situation to a slam dunk for the state that's ineffective assistance of counsel and we don't know exactly what went on with the intern we're not asking that that mr rogers conviction be overturned and that he get a new trial we're reports of him that she went over evidence with him but then we have a very specific comment from her regarding the recordings and her statement that because of the issue of her time she left that to an intern to play those recordings for him we have a very specific statement of that so since we don't know anything about what went on between the interne and mr rogers other than mr rogers saying and your didn't play in that particular recording for me where yes i mean we certainly are the court is in the position of trying to decipher exactly what counsel did but in doing that we do have the additional information about counsel saying that regarding these recordings she did not play the recordings for him we know that much we know that she left the playing of the recordings to the internet she was very clear about that so with regards to that there's not really much  k or you know trying to figure things out that this court has to do with regards to whether she played the recording for him or dot com she also i never said that you know when given the opportunity to answer questions about the audio recording she never claimed which i didn't play it for him boss i talked to him about it at length when he sat down with my supervisor there's nothing like that when she was given the opportunity to defend her representation and given the situation where the standard is merely that there's the possibility that mr rogers was neglected then the appropriate thing to do is to appoint counsel to investigate this further  interview interview the attorney ask those pointed questions of the attorney you know you say that you talk about reports you say that you talk about evidence what does that mean and really nail that attorney down in a cross examination format so that this court can ultimately be provided with an adequate record to decide whether there was an event but the question of the way your client told the court that counsel stated there was no audio just the video quite a bit more again conceding that word audio was never use wasn't a trial court title to believe that everything was adequately discuss even though there might be a question about that audio having been played no no because with with respect to that one particular for the key issue whether the audio was played or not there's no between counsel and between mr rocker's there's no way that the court would say oh well i'm the trial counsel is more credible on this particular issue than mr rogers is because trial counsel made no representations about that key issue a case where there were an evidentiary hearing where credibility determinations came into play yes ultimately the trial judge could decide that well because mr rogers has this it would take it a little bit i don't find it incredible that would be totally fine but we're not there regarding the key issue at this point because trial counsel did not offer some conflicting op point of view on the matter if mr robinson said he never played this tape for me and trial counsel had gotten up and said no judge i have it right here in my notes on march thirteenth i went over to the jail and i played this recording for him truck out the court could look at all the surrounding circumstances what he observed at trial and decided yes i find that trial explicitly say that it was not credible the trial court said i have a hard time believing that and went on and say that he has a hard time believing if that this would happen but that when we get back to manifest their standard we have to look at the evidence that the court had before and this isn't some wild claim mr rogers is saying that the trial counsel conspired with the state against him to try to get him to court that there were other uncharged cases that they were they had knowledge of at the same time maybe he in turn played a tape from one of those we simply don't know we don't know if this was a rule seven eleven in turn or just some first year talks about old videos the now was included because there's only two there's only two recordings in this case so that basically refutes defend its claims that she did not talk to trial counsel about these videos and it since are she didn't use remember she didn't remember using the term audio but there were because of the c s a song corps and over here that was played in the court as well so i think these are conflicting statements and because there are conflicting statements the court the tr may please the court briefly i just want to touch on something counsel just said he talked about how counsel said that she reviewed videos with them that means she must have been talking about both the video recording and the audio recording but that's not actually the case if we look at what counsel said in volume eleven page ten ten of the record what counsel said was a judge we talked about videos in general i don't remember using the term audio we talked about  were involved both there were videos of the c s that were unsharp so when she's talking about videos she's talking about the video in this case and the other videos in those other uncharged cases that's as opposed to the audio recording what we have here is a record where mr rogers said no one played this audio recording for me and counsel didn't come in and say yes we did counsel came in and said well you discovery in every case or copies of every video in every case however they are entitled to the information that is necessary for them to make informed decisions about their case like whether or not plead guilty whether to go to trial whether to testify  decisions if counsel had sat down and gone through it in detail and said you know and then you say this on the video and then you say that on the video and had given a really clear picture of exactly what happened on the video i'm sorry on the audio that may have been sufficient but notably counsel never claimed that she did that when pressed on whether she told the defendant about the audio recording played the defend are not a distinction of counsel refuting a point and their poor counsel advising the court i have no clear memory of saying the word r t o but what i can tell you is these affirmative  i agree with the first part of what your honor said there is evidence of that but i disagree with the second part that's not enough because of what else counsel said about the audio recordings and the fact that she left that to the in turn without more knowledge of what the intern what happened in that in fact in that meeting with the intern it was premature for the court to disregard mr rogers claim and therefore counsel should be appointed an evidentiary hearing should be held and we should govern that if there are no further question