being offered lunch today and somebody says lunch is going to cost you twenty dollars well if you're being offered a lobster dinner it's a great deal but if you're offered a hotdog and french fries then it's a terrible deal now in the context of lawyers we expect a lawyer to be there telling you what the facts are so that you can adequately judge the wisdom of taking  now in this case the prosecutor got up there and said sir if you don't take this deal your minimum sentencing guidelines are forty years and you go up from there michigan doesn't even have sentencing guidelines that start where did the prosecutor come up that well in the u s district judge opinion on page thirteen he tries to explain how it is that the prosecutor though acting noble he could do so totally mislead and misinformed this defendant and mr lloyd so let's assume that it was rahm in your analogy you don't have a problem if the came up and said by the way you're only getting that twenty bucks and that's exactly what the judge did here is i see it as i read this whatever misunderstanding or mis correction whatever should have been corrected was corrected by the judge prior defense lawyer both had to constitutional obligate agent to step forward and say look you have just been given improper information by by the prosecutor designed for the very purpose of getting you to take a deal that you might not otherwise take but for the fact that you're being tricked with a threat of forty years that could not happen and i've cited lots and lots of case law that in order for a plea to be and how we can involuntary the defendant must be aware of the consequences and that includes the consequences of what he is a boy then the didn't the judge tell him pretty clearly what the consequences were in fact concerning the concurrent and consecutive sentencing situation the judge didn't tell the defendant what he would be getting although that in itself was confusing a thing i'll get to with the moment but the judge corrected what the defendant would get without the the the defen e has this hanging over his head this forty years it's a threat it's a false threat it could have no other function than to persuade a defendant into taking good deal when he would not otherwise take that's the whole reason for stating the forty years the prosecutor couldn't have pulled it out of the book it's not enable the prosecutor made it up and the defense lawyer i  why this defendant was not happy with is defense lawyer because his defense lawyer should have stood up immediately and said mr spikes you're getting false information here but he didn't do that instead the lawyer pleads guilty and gets a guideline sentence and that i thought you said they wanted to go well that's just it the guidelines when they went into the time of sentencing the guidelines were one seventy one to two eighty five that's in months then the defendant says judge i have a problem with my lawyer judge says spikes get out of this courtroom you can't stay here any more and then while he's absent they raise the guidelines to two twenty five to three seventy five and they give him a sentence of three hundred twelve months plus the twenty four for the felony firearm which could not have been given under the guidelines that were stated to this defendant at the time he was objected from the core therefore it's our position that this ejaculation from the courtroom is not only manifest an abuse of discretion and unconstitutional but is also prejudicial to this defended he didn't say it's not illinois be out he didn't threaten to kill the guy he had already been sentenced to would twenty   or twenty six years is that right on the what was what was the original for us all of a crime well up there was a different conviction that had where he did receive a twenty two year sentence and certainly this conviction is playing a role in that regarding the sentencing guidelines if i get this conviction reversed then i'm going to go back on the other conviction and ask that it be recalculated regarding the sentencing guidelines but the point is it's been the judge telling him that the sentence for the the on the guilty plea before him would be and would gather counsel asking you if this judge didn't tell him that what the judge told him is that if you take this deal it's four years and that's what the defendant said that he believed he didn't believe twenty six he believed for that's what he told the judge they think the four years total that's what would be defended by subserve and well it may seem absurd but it's the exact words of the judge the exact words of the judge were you get four years more for this is said little said if you want to look at it that way it's four more years on top of what you otherwise had but it's a total of twenty eight or whatever the total is you can't you just mischaracterizing what the judge said you know you're not helping us counsel you just make him stuff up factually that the record demonstrates is not true well and also what we're talking about that you tell us that mr sikes was moved from that corporation he was but that was during his sentencing that was not during his change of plea so the question of whether he was properly  penalties at the change of police here is not affected at all that his removal from the coroner that's right those are separate issues the first issue is that if you tell somebody if you don't take this him what he would get the judge did not tell him what he was avoiding by taking the plea he was directly misinformed by the prosecutor the judge had a constitutional responsibility to stand up and say the prosecutor told you wrong mr spikes and still i say i want to say a matter of style but i really think your advocacy would be more effective if you didn't point your finger in the direction of the panel yes appeal that will go into the record books and of on a fake name just out of curiosity because that's the name under which the state of michigan prosecuted him so you wouldn't be opposed to us footnoting this with his real name assuming we could figure out what out  what it was not at all that would be appropriate as an officer of the court his name is what whose name is sylvester north and i do have his mother in the courtroom to confirm that if it was needed but i don't think it is and that's had to be corrected or any plea would be involuntary because the defendant would be acting on the basis of incorrect information given to him in the court room by an officer of the court and i also take the position that it was completely acceptable for this defendant to say i don't want a lawyer who allows the prosecutor to miss advise me and to trick me and i also believe that those few words that the defendant said in the court room at the time of sentencing don't even come close to a basis to egypt him from the court room and let me ask a question about this will take this calmly calmly one step at a time his beef as it's expressed in your pleading seems largely to be this difference between twenty four years and four years and i understand i think your argument that he was hoping to preserve his appeal in the other case get that reversed and then only do four years roughly speaking is am i right so far better to use one of the several complain as it turns out he has appealed the other case and he's lost at all stages including at this court that's over that's done with the gov't he's stuck with that so yeah so he can't show that is situation would be different were he to have won that because in fact he lost it right he did lose it so now we are at the point where he got exactly what the plea agreement was and it strikes me that what's missing from this aside from your argument is he doesn't claim that he would not have taken the plea but for the forty years in this letter i'm waving about forty years i get that but where do i find that he wouldn't have taken the plea that doesn't seem to have been his forty years doesn't seem to have been an issue to him at all in his colloquy with anybody well he was ejected from the courtroom he didn't have a colloquy and he was ejected in sentencing not at the time of the yes well at the time of the twenty well he has stated as many times as possible the very first thing he said at the time of sentencing judge this lawyer has misinformed me the real fact is the judge basically say shut up get out of the room we'll hear this without your input we don't want to hear what you have to say i won last time where do i find an indication aside from your argument that he would not have taken the plea because of the forty years as opposed to the the difference of opinion as to how you analyze whether the plea deal was twenty four plus four or twenty eight where do i find that you'll find it in an evidentiary hearing assuming we get one so you haven't gotten an evidentiary hearing so i can't find it there so where else do i look you look to common sense if somebody tells you we're river regard i won't belabor the mandates of i'm sure this car is very familiar with what it requires we just request that this court affirmed the district court's decision for three quick reasons first by spikes has failed to identify any clearly established supreme court precedent stating that the trial court must indefinitely continue a matter and till medically unavailable counsel who has no prospect of returning to the practice of law might be able to return secondly even though the  he can overcome the trial court's not once but twice determination by clear and convincing evidence now i'd like to point out real quick that any reference to oakland county in the district court's decision and in any briefs was just simply a misstatement all of this occurred in wayne county and regarding the forty year minimum i do have a possible explanation of how that may have come about i did discuss a talk to the prosecutor's office they could not find any of the searchers and skis notes to see how he may have arrived that chairman ation however there is some evidence in the record to show that he was in fact looking at the if you look at the statute l seven seven seven point six two which is what applied in this case grid f six the maximum monthly and that grid was four hundred fifty months if my math is accurate that turns out to be approximately forty years at thirty seven and a half years and when you look at the february second transcript he informs the court that the top and of the guidelines is about forty years and i think that's where that began and i think kind of like how things were misstated regarding oakland county when they got to the actual play discussions and he was thinking the minimum sentence under the maximum guidelines could have possibly be about forty years then applied michigan's two thirds rule under i'm c l seven six nine point three four to get to the magic number of sixty which forty over sixty is two thirds so that i think is how that came about regardless as joe is your argument th wrong correct and as this court indicated so the whole argument of your opposing counsel ear is that forty years was mentioned spike's or whatever his name is listen to that and heard that and that's why you got this deal information it wasn't forget whether it's a loser e or not that he that he was misinformed by the government and that either his counsel or the court or both had a duty to correct that so what's the response there responses as you pointed out on  direct is that the trial court informed him that he was facing twenty six years at a minimum and he realized he was facing twenty six years because he asked the court to clarify that twenty six years is not consecutive correct so our argument is that he knew he was facing twenty six years knapp four years and so because the court under oath but that doesn't that doesn't seem to address what i think is the claim here not whether he was advised properly as to  to the plea agreement let's assume that he was that he entered into the plea agreement based on a false impression that he got from the prosecutor that the court had a duty to correct so it really comes assuming that i understand that argument correctly does the court then have a duty when it's explaining the twenty six years to say and by the way you heard reference to forty to sixty that's false that your honor i'm not sure but under the my response would be under both the armed robbery statue and how his guidelines were correctly scored he faced life in prison and that would be my response is that he was advised that he faced life and so that this twenty six so we find someplace i had forgotten then do we find someplace in the transcript that somebody said the real maximum here was life that is not in the transcript the sentencing transcript i don't i don't have to double check and if your honor we're not talking about sentencing we're talking about the plea at the the judge informed him he was facing life so your argument as i understand yours is prosecutor said forty to sixty maybe you can figure out some reason why you would have said that you concede it's wrong but it doesn't really matter because the judge said something even higher and that was right that it's got a bottom line here that is the bottom line your honor and quite frankly if i may if you do cite to the to that to the judge's statement to the with respect to life in your brief one thing about michigan procedure here the all the charges one he got twenty two two years what i will call the assault convictions those are the ones that he has received the two year felony firearm plus twenty two years for the a whim assault with intent to murder conviction so that equates to twenty four years that was a case that was filed in two thousand and one and that was his case separate from the robbery completely that was from what i understand from what the charges were that was the case entirely separate from the robbery the robbery wasn't charged until two thousand and four it wasn't part of the been completely separate or maybe part of the same it whether it was part of an ongoing enterprise of criminal activity i do not know from what i glean from their i have the understanding that it was a separate incident was it be unusual too if it were everything was in one indictment because it all grew out of a sign it would be unusual to separate a mark and know they were on separate and documents and then the prosecutor stating that he was facing forty years regardless that that was never been brought up in any of his state court documents and i believe if he had actually relied upon that statement that that would have been part of his his arguments there and instead he decided to challenge the consecutive matter which was proper under michigan statute so i guess but it's sort of i mean in order to for him to have been possible penalty strike correct your honor so i mean i understand this for years versus twenty eight or whatever it is as a separate issue that mr spikes claims render concurrently but it's not just a four year sentence and that's our relevant today but it seems to me this earlier claim that prosecutors mistake really goes to whether he ultimately was told what the maximum possible penalties for the crime were that is correct your honor and so i guess i'm lost this car has any questions on any of the issues or would request require any letter briefing and i'd be happy to entertain any other questions you may have have anything else lawrence had your three minutes oh well at the difference between the state and federal sentencing guidelines here federal sentencing guidelines are only recommendations yet even in federal court you can't tell the defendant the wrong guidelines and have the police be voluntary here in state court the sentencing guidelines are mandatory you cla required to advise the defend of the guidelines under mission laws that would be a state law requirement not a constitutional one because the cuts to teach and all requirement is that constitutional requirement that is the constitutional requirement that you not mislead the defendant and if you mislead the defendant about a matter of state law you're still misleading the defendant and therefore making the plea involuntary now the you're saying for a prosecutor to get up and say to the judge we think the penalty is such and such and be wrong about it that's unconstitutional when the judge straightens it out by saying the maximum penalty is what it really that's a constitutional era the judge never did strike it that's the whole problem the forty years that the defendant was going to if he didn't plead no one at any time told him oh by the way we didn't tell you the truth about that the forty years was on the defendant's mind at the time that he pled and then when he learned between the time of plea and the time of sentence that his lawyer hadn't done his job hadn't properly informed him that the forty years was something invented by the prosecutor and they said excuse me judge i have a problem with this lawyer the judge kicks him out then while he's absent he raises the sentinel writes from what supreme court just decided last year missouri v frye last cooper and the late absolutely you are done with your list of cases and i believe we can look at those our say and determine whether in fact they support the principle for which decided them we appreciate the arguments that both of you have given will consider the case carefully and since there are no other cases to be argued you may adjourn court