to trial counsel's failure to discuss a lesser included offense offense of involuntary manslaughter with my client right or the trial record was established that at the course of the evidence sherry hearing there was an admission from defense counsel as was corroborated by my client heather but no discussion was had regarding whether to request this lesser included instruction now certainly we recognize that there are some factual differences between our argument on voluntary manslaughter and second degree so i wish to address them separately if the court with a lot stronger so it's our contention that people be proximate the only supreme court clearly held that the decision whether or not to request a lesser included offense instruction is a decision for the defendant to m but if the court was to determine that that decision was not made by the defendant that it would ultimately want were personal in our briefs we set forth the case of people v williams out of the first district which we believe is the case that the court should follow in deciding how to analyze this particular issue in williams the first district clearly held that if the record is clear that the decision was not made by the defendant then alternately it would warrant reversal under proximate without even considering the inefficiency issue from there on we believe that the record is clear with respect to that particular issue and would ask the court to make that finding here today now ultimately the trial court as a part of its order here has stated that essentially whether or not the discussion took place it alternately didn't matter and it kind of divided its ruling into two different facets or reasons why one reason was it said that essentially the rocker going to stablish that my client had asserted her innocence from the very beginning and the because she a her innocence it didn't make sense for trial counsel that discussed with her these lesser included offenses through the course of the trial or so is there a difference between the defendant making the decision versus counsel making a decision or position and counsel made the decision it's my decision it's up my contents are not my decision it's my contention that the record here establishes that defense counsel admits he never discussed it with my coffee therefore how could my client have made the decision if she wants a lesser included instruction and if you failed to have this discussion with her how can she ever know that this is an available option and i believe that the record from the evidence you're hearing is clear that that discussion never took place is it was your position that it has no discussion council made the decision instead of the defendant that's correct your honor i believe that in that moment because my client was on the advice that this is an option she could allow to pay that essentially by proud counsel not even advancing this option for the course of the trial is defense counsel making that election as opposed to defend herself now i recognize here is that the factual distinction between a consul to the post why he discusses this quite i believe that with respect to involuntary manslaughter your honor the t offense with the defendant as a part of a trial i think that whether or not the client has asserted her innocence it's his requirement to discuss with her these available options and let her make the choice why is there were court so hopes that you are i believe that it doesn't hurt is because in people the williams the analysis that the court employs is simply did the record establish the decision was made by the defendant or not it wasn't made by the defendant that alternately it warrants reversal under proximate regardless of what the nature of the defense may be that they have discussed with their client lesser included bomb term no your honor i don't believe that they have to put that on the record i think people in the d l c want to protect themselves argument you were very forgiving instruction grocery store well ultimately your honor part of the situation here is in order to answer that question i know i promise i'm going to get there there has to be an understanding of what the evidence was for the course of the trial is the court is well aware the trial court here handled very circumstantial evidence there wasn't there wrapped evidence as to what occurred within the me home on the date of the sense that what was there was was even in the post conviction proceed very clear indication that the defendant is not going to plea to anything he was not accepting a possible plea to second degree she maintains she had absolutely nothing to do with this incident she wasn't in the room at the time this happened she was not involved in any way maintained that route the trial and that is correct your honor but i think there's a distinction between advancing an opportunity to be found not guilty on everything verse advancing alternative recklessness what was the reason is the circumstantial nature of the case rests on the fact that the state really only presented three particular issues the first that when heather let me was the only adult within the laney home on that particular da second that there was a text message exchange which showed an increasing level of pressure ration between my client over the minor child and three that experts testified that the injuries could not have been self inflicted here however i've cited people the hamilton to kind of address the issue that the court is burning up in people the hamilton that case was circumstantial as it relates to the mental state of the defendant at the time the offense was committed and the only supreme court held that because there was no direct evidence of what the intent was of the defendant because the state couldn't prove that then in that case the defendant was entitled to the lesser included instruction of that i would submit that's exactly the situation here because the state cannot submit direct evidence as to what time the offense was committed was with knowledge that it would cause strong probability of a strong drop probability of bodily harm or death whereas those same exact acts could have all done the final the child i believe was four year old and the kinds of injuries the child suffered your argument is well assuming the defendant input to those injuries upon the child that could have been recklessness or inadvertent some yes you ultimately resulted in this death because of that we don't know whether this was a sudden outburst based upon you know something outside of the record that nobody knows where the client reacted and old her caused the death of this minor child bigger client is maintaining that she was not in the room at the time this occurred she had nothing to do with this the attorney argue that she was not involved she did nothing not that she did something but it maybe got out a hand claim was a trial she was not involved in this she has no idea how this happened in fact the defense there was that this kid threw herself down so violently that she paused all of this yourself because she had this history of you've already gone through with the second degree plea and she says absolutely not i'm not pleading to anything i did not do anything and then at the closing argument the attorney argu she was not involved we have no idea how this happened but she didn't do anything you're saying under that set of facts if he doesn't talk about involuntary now she's already turned away in a second degree he's in effect yes well first i'd like to distinguish between whether it's ineffective or whether essentially it's per se a violation of her rights under proxy i think that rocksmith as held in williams establishes that if the record is clear the discussion didn't take place it's a per se violation and the court must reverse we move on in fact in that case they said we don't even analyze the inefficiency issue whatsoever and that's the part that's the position i've asked this court to pay with respect to your honor's question certainly there's case law cited too and it might be my reply brief or my open group where it's a well established principle that a defendant can go to trial to seek to be found not guilty of everything and ask for a lesser included instruction as an insurance plan even if those are agrees with the trial court that there must be some evidence that ultimately there was some other than since i was citing to your honor in this particular instance though that evidence can be contradictory it can essentially allow somebody to reject the second degree murder plea so they can have the option of being found not guilty of everything to say that because she rejected a second degree murder plea that explains that she wouldn't have wanted any other instructions doesn't make sense of the circumstances reason being is to accept that  eliminates her ability to exercise her right to trial and be found not guilty of everything and so certainly there's a large difference between requesting a lesser included defense instruction be given to the jury and a situation where i don't even know it's an option to go to trial and be found not guilty of every i dish with i think that the difference in this particular case is that my client testified during the course of the evidentiary hearing that as the trial proceeded she realized the trial wasn't going as well for her as she would  think that that's exactly the scenario why someone can make the election to have a lesser included instruction at the point in time that they're getting jury instructions because you can go to trial and ultimately see that the evidence isn't going to weigh you with light and make that decision at that point in time and then tell the jury instructions are finalized and given to the jury or end up exploiting arguments you're not foreclosed for making that request and he's the first defendant in hindsight says now the post conviction proceeding agree that that discussion never take put into place so how could she have been in a position to say i want something that she didn't even know was an option for writers i believe that her testimony is unimpeached by defense counsel as it relates to both involuntary manslaughter and second degree now i started to suggest that the facts are on second degree or somewhat different but in this particular case the defense attorney states he had a conversation with my client in a room where her family was  that he believed that the consensus walking out of that room was that second degree murder was not going to be a request however when we attempted to further delve into that defense counsel wasn't able to testify to some affirmative representation from my client that it was her decision not to request that second degree murder instruction be him in fact he said he couldn't be one hundred percent sure of that she even understood so when my point testifies unimpeached the evidence you're hearing that she doesn't recall being explained that she could of second degree murder case with regard to the two legal before you wrote here you are as i don't have a hypothetical for the court and i think to require the defendant to present evidence in this juncture where it's based on the absence of evidence from the state openly shifts that have first this for rocksmith and medina and their programming those are actually the facts of those cases where defense counsel submitted lesser instructions not not refused to submit without either without consulting his or her client or with his or her clients direct express disagreement clearly extending proximate to situations such as this your honour's sort of stole my thunder i was going to make the bo declaration that this would be the first port to so whole but you guys are really recognize that point mr neeld what about the notion of requiring the defendant to demonstrate that there is some evidence to support the lesser included offense that's the easiest way to dispose of the ineffective assistance argument here i would also submit that there was no per se reversible argument that this evidence you're hearing this was posed as a ineffective assistance of counsel argument  ineffective assistance of the truck or specifically noted that had these instruction fent given they would have been rejected and that was the proper finding by the trial court the state of mind is almost always proved by circumstantial evidence it's hard to find cases where somebody says i have knowingly doing this or i'm intending to do this or i'm recklessly doing this the most always proven by circumstantial evidence that's why we have people versus perry i cited in my brief as two factors directly to this case whether a defendant acted recklessly and whether an involuntary manslaughter instruction is appropriate those includes the disparity in the size and strength of the victim the brutality and duration of the beating severity of the victim injuries and whether the victim was defenseless all of those weigh heavily in favor of rejecting an involuntary manslaughter instruction in this case and we know specifically as to this case but that's exactly what the trial court would have done because they stated that in their evidence sherry in rejecting of the finished post conviction claims in its evidentiary hearing findings so clearly the best the easiest way to dispose of the lesser charge is instruction as to the second degree murder instruction we have specific testimony from defense counsel that defendant indicated she did not want a second degree murder instruction given it only follows and it makes all the sense in the world that she would not want an involuntary manslaughter instruction given because this would completely undermine and contradict the whole defense theory of the case i cited morrow and why i want to point out morrow is not an unpublished order for some reason there is a you after it in the elapse i think it's a typo there's a northeastern third citation that is clearly a published opinion that case is also a political here again it was for second degree murder but they stated defendant testified in his own defense that he did not shoot the victim and he was not even present during the commission of the offense at that point the decision whether to request a second degree instruction and thus give the party a compromise point short of a full acquittal became part of the trial strategy that's almost exactly the situation here defendant did testify held likewise and they stated even if we assume there was enough evidence to support a self defense instruction defense counsel may have concluded that a self defense theory would have been in compatible with the theory presented since it would require defendants to admit to the shootings here it was a matter of trial strategy of the utmost importance because of this even if we it's not an admission by the defendant but it's an implicit admission if they give the involuntary manslaughter or second degree you see this  after the direct appeal he was first sentenced a natural life ok and there was a recent thing which is why this is the first proceeding where the recent thing has been argued that this was an improper argument was improper factor in the improper it wasn't an improper aggravating factor it was not an aggravating factor at all it was in the trial court even specifically clarified it was not considering the husband's text messages as substantive evidence and it's hard to even fathom how it could be prejudicial to defend and it just went to whether she conducted this beating on the victim based on the suggestion from her husband or whether she was just frustrated because the victim threw dog food everywhere or w hard to fathom how that would be improper aggravating factor even assuming the trial court used it as substantive evidence either at trial or in sentencing in any event the trial court properly clarified its own statements  at the motion to reconsider re sentencing and as for the ineffective assistance the only other argument of the first potential witnesses the trial court heard the defense counsel gave multiple sound reasons for not calling brianna she was only five years old time trial the defense counsel considered her baby that was exact words she couldn't she testified at the seventh year you could not even remember going to the trial so clearly this was a risk especially since she gave a prior record a statement that was inconsistent could be used for impeachment and defend it specifically told counsel she didn't want any of either of the children involved those are all sound reasons and not objective objective leean reasonable reasons for not calling neither of them filed an affidavit neither of them testified at the evidentiary hearing the only claims we have as to what they should have those witnesses would have testified to were from the defendant herself and of course trial court was in the best position to evaluate credibility of defend it at that it would be a jury hearing they had an obligation to believe her testimony at all at any rate even if she even if those two witnesses testified to exactly what she stated they would it was clearly cumulative and only it was it was before the jury jury kiana fell at church the week before that that was clearly before the jury it was refuted by different states forensic pathologist medical expert witness that testif a second degree murder instruction i wish to clarify what i believe the record shows and know that the record will speak for itself as i stated in my opening remarks the evidence around the discussion about second degree murder here does not establish that my client made the decision no request a second degree murder construction rather the evidence shows that there was some discussion or my client was present in a room with a lot of her family and defense counsel wasn't able to state that she affirmed of lee made the decision not to request the second degree murder  of people be williams i believe that the court doesn't even get to that fine it's centrally holds that it's a per se violation and that's what i've argued in my opening brief to the extent that this court believes that there does need to be a showing of prejudice that's when we get further analyze that issue of course i'm serving to the court that i believe should adopt the holding of people the williams here to the extent the court requires us to go further i think the record doesn't show that my client made the decision about second degree and certainly to the extent that mr mcneil persuasive your honor and i think in this situation because that court's the sceptically held that if the wrapper just clear the discussion didn't take place then we reverse and approximate without going further and that's exactly what we're dealing with here then i think it is binding on th determination here today briars i think it's also important to note that in this situation that people view brown is something that needs to be addressed for purposes of the second degree discussion in brown this fourth district  it can't be determined that someone acted knowingly on advice of counsel about requesting a lesser instruction if they were under a misapprehension about what their sentencing range was your honor asked about the recent thing that happened in this case in the post conviction hearing i believe defense counsel admits that he was under a misapprehension of the sentencing range my client was to face upon a conviction for first degree murder and that he admitted that that was advice he provided to my client and my client similarly testif that was her belief prior to the recent saying here in this case how can it be determined that my client made a note in the washing of dr request an instruction if she's under a misunderstanding or misapprehension about what the sentencing range would even be in the event she was to be convicted or one of  the judicial efficiency of how this was handled certainly in this case of appropriate motions to reconsider were filed to delay the timely following up an appeal and because those motions were filed my client adequately preserved her issues of the post conviction