thank you good afternoon your honour's may please the court counsel i begin with a preliminary matter i understand that the state has filed a motion for this court to consider some additional forty that being people be couch i just wanted to state on the record that not only do i not objects to the state's motion i second the motion as it were and agree that it is relevant authority that should be considered by the court here and i am prepared to discuss it if the court so chooses i thank you we are here on review of a circuit court's dismissal of mr coleman supposed to can petition out the first stage failure to raise an issue was objective liane reasonable and if it is arguable that the judgment of conviction or sentence in this case the sentence should have been reversed had the issue been raised in this appeal we know that both on the suit can be satisfied of this arguable strickland test because this course prior rule twenty three order on this recall is direct appeal virtually testified trial as a factor in aggravation at sentencing this court rejected that argument not on the merits but on the ground that the sentencing issue had been forfeited mr coleman's trial counsel feel to include this claim in his motion to reconsider the sentence and while appellate counsel on the direct appeal attempted to bring it to this court under the plain error doctrine for th least arguable that it was objective leon a reasonable for appellate counsel to not raise the glaring issue of ineffective assistance of trial counsel and instead relied solely on a doctrine that had been decisively shot down by the appellate court three times in the same rule twenty three were this court also agreed that and i quote a trial judge should not sentence denied the trial court the opportunity to clarify or disavow its remarks therefore have power counsel and a direct appeal raised the issue of ineffective assistance of trial counsel on that direct appeal it is at least arguable that the sentence would have been reversed now it is free the state never really answered this argument but instead replicated this same error as as the court below did by prematurely arguing the merits of the claim instead of addressing the appropriate question for the first day which is simply whether there was enough of a constitutional claim here just for the constitutional claim towards the appointment of post conditional postcondition counsel and allow the defendant to develop his claim at the second stage indeed the state wants this court to send a side of the clear procedural infraction that occurred here committed by the trial court but the sole question before this court now is whether the circuit court heard in dismissing this recall petition at the first day it was authorized to do so only if the claims made there and were frivolous or or pay only without merit this claim was not frivolous or paid only without merit as it was grounded in the courts rule twenty three order as i was just out it follows that the court below committed reversible error when it nor its very simple and basic first stage screening function ignored the correct standard to apply never even addressed the ineffective assistance of appellate counsel claim never apply the test for that claim and on top of that proceeded to interpret the record rather than simply search the record to rebut factual allegations in order to dismiss the petition so for these reasons we believe it's very clear that they did the trial court heard and that this has to go back position takes here that the trial court should not have relied on its own knowledge to dismiss a post conviction titian the first stage and the majority agreed holding that even though it was highly probable that the allegations made in the post conviction petition were factually wrong it was still improper to dismiss it on that basis on the basis of facts explains it for the record the county case was the had basically a conflict of interest that as a youth the defendant had had a fight with the judges stepson and that his mother had publicly condemned the trial judge for having an affair with a married man you can't make this stuff up that was what the that was what the allegations were and what it when it came to for a post conviction on the post conviction petition a different trial court judge says well i know the other judge facts that that basically could refute the facts that were being raised in the postcondition petition however those facts were not facts of record and the court  properly world it even though on the face of it some of the allegations seemed outlandish and even though the trial court judge ruling at the first stage i knew from facts explains it to the record that they were outlandish or it best very difficult to prove nonetheless that was improper to consider those facts extensive to the record and that was really to the point it was the same judge in this case and he said well what i meant to say was i was actually considering why like a factor in mitigation than a factor an aggravation worse than that a fact none the less this is improper following the same rules as the majority in coleman case therefore i would submit to you that the county case actually actually supports our argument here that there was a misapplication of the rule the only other thing i mention here i think and following corby ito basically the lesson from that case is that if the workers here had revealed for example that the court had never made any statement at all about the defendant's failure to testify well that would be the exam an example of the record rebutting positively rebutting an allegation of fact made first stage but that's not what happened here it was the statement was made the question is what did it me and that's something that's subject to argument so for these reasons we asked this court to respect the clear rules of procedure on a first stage dismissal of a post conviction petition and as it did  basis that prejudice the easiest way to know this is the trial pal trial court's own clarification at the post conviction and dismissing his post conviction petition that indeed definit couldn't be prejudice this was a factor in mitigation not aggravation as i'll get to later this was not improper for the trial court to say it didn't violate any procedural rules of the first stage because this was not a well completed fact that the defendants sentence was only two years of five the minimum he would be the range was nine to eighteen he got eleven years so almost seventy years below the maximum only two years above the minimum  like in bor these comments were well exactly comest the trial court had already gone through the statutory factors and aggravation and mitigation been stated prior to this whole section that i'm going to make some comments now  so clearly the the fact that the court says he did not testify which is very significant to the court the court and already mentioned his prior criminal history and extensive prior criminal history the court mention th defendant failed to take responsibility for this crime the court mention of this was a serious drug offense and its eyes so if even we assume that this is supposedly very significant that he did not testify it's hard to say that two years above the minimum and almost seventy years below the maximum so pursuant to people versus board is another avenue the defendant clearly was not prejudiced here for therma say the the whole contested statement at sentencing by the trial court was this with the sentence before that in terms of what i find to be significant here this is obviously a very serious drug offense in the court's opinion and maybe the defendant gets a little closer but he still has not accepted responsibility for his conduct in this particular case although he did not testify which is very significant to the court the whole sentence the whole statement before this sentence about not testifying is a negative against defendant we're all familiar with the of the english language the word although at the beginning of the sentence means it's in contrast to the previous sentence but the court just said the cold record demonstrates especially as i read it aloud how it would be in court the whole record demonstrates that all this negative stuff about a defendant however he didn't testify which is very significant to the court it's clear as stated in this clarifying statement and dismissing this post conviction petition it's clear that this wasn't a factor in mitigation not in aggravation and finally it's procedurally proper or at least not improper for the trial court to comment on this matter the trial or the trial judge it was the same as it was in sentencing this was not a well we did fact that had to be accepted as true again this was a conclusory statement personally the petition is not reality based it would be absurd to require the court must nonetheless accept the petitions assertions unless they are contradicted by the record here would be even more absurd than in  court really did have to look at facts outside of the record yet they had to look at the sentencing judge which was a different judge the sentencing judge of personal life mary how many kids she had set her up here this is the same judge there's it's personal knowledge it would be absurd for that to run this all the way up to the flagpole and take it all the way doing evidence you're hearing the outcome of the proceedings would not be different at some point the trial court whether by affidavit testimony or whatever it is even if there's a different judge at some point the trial court's going to clarify that now this this whole thing is based on a premise but is the question of it what point that occurs is that appropriate the first forth the gist of a claim and if it does is it automatically refuted by the record previously made as opposed to making  demonstrates that this was not a factor in aggravation this factor in mitigation even just reading it the defendant can interpret anything however he wants and also conviction didn't give enough threshold is supposed to be so low why should we be playing these games  it was there i would submit that it was the personal knowledge of that trial court and again what they would be a reality based exception to him at at some point this doesn't this this argument  allege that the judge was from the planet xena and this due process rights were violated because he was some kind of be tried by a human being that's the kind of reality based exception would apply how does that work when you're counts pursuant to the fact that prejudice cannot be established based on board based on couch based on the fact that found the whole record plain language the whole record shows that this benefited defend thank your honour's briefly i think what opposing counsel has just done respectfully is made an eloquent argument that would be presented at a second or third stage proceeding but that's precisely witness to then explain i think judge stegman is correct exactly this is what we're talking about here and that's appropriate for an evidentiary hearing but at least then to trial their excuse me postcondition counsel for the defendant would have had an opportunity to develop the argument there might be a little bit more to the argument that he might discover upon meeting with counsel we can anticipate everything all we know is that we that he is entitled to be able to make that argument and that is really the point here it is not why it would be difficult i don't think his state counsel suggests here that simply the use of the word although used and the context here maybe the defendant has got a little closer to accepting responsibility as well as but he hasn't respect it except that responsibility well although could be a contrast to either either of those two things if you look at the the full context every time the sentencing judge uses the word significant find it significant that it was a very serious drug offense he found it significant that he does have two prior felony convictions he found it significan he did not testify well of the other two occasions where you used the word significant to use it as a factor not referring to a factor and aggravation maybe that's what he was doing here i'm not saying it's a great argument i'm not saying i would bet on post conviction counsel winning at the second or third stage but the real point here is if we follow the rules of procedure the way we're supposed to he gets the opportunity to make that argument and that's really the point here the fact that it happened to be the same judge i don't think changes the analysis at all he's not allowed to consider much less introduce matter six forensic to the record in order to dispose of it at the first stage and actually the point here how it plays out we can make educated guesses but it's got to play out that's really my point and if there are no further questions from the court i will leave it there thank you ron thank you thank you