good morning may please the court counsel isn't even maybe mandated on us to report some of these matters to the a r d c those are my words that's what the prosecutor sad that at his arguments on the defense motion to withdraw his guilty i guess the allison never met and even know existed to convince him to plead guilty most importantly protect had no idea what kind of sentence the state was going to recommend or course turn what kind of sentence the trial court was going to impose now i certainly recognize that can be an appropriate and appropriate strategy in certain cases this was not one of those cases those cases are when that evidence is overwhelming when the state has and the case most importantly probably on the and that's the that's the key i mean i agree with you as far as every single thing that you satisfy is what the evidence what would show they would have had them just based on the fact that it was in a system for you know sort of regular i'll call it a drug deal why because that statute only require have the presence of the cocaine in the system and there was proof that i mean i can't imagine that there would have been much of a defense mounted to that trial the defense i think what a bad impairment and that's the key that would have been upon the state that burden would have been on the state to show them out could they have shown it it's certainly possible that they've had to call an expert to say these were you know something like we see in marijuana cases these are the levels in his system yes i'm an expert the effects of cocaine last for so many hours this how it impairs you this is you know reaction time whatever the case maybe that's all the state's burden to prove and they would have had to prove that in this case and preserve where did i say that because he even mentioned that that substance even said well there's no proof of impairment a because of course he pled guilty didn't have to prove i mean following from that is that is that he got to say we're going to ask for twenty eight years one way or the other all right so how did there was evidence that if they said you know to to preside hey look we have you know here are the you know here's the lab report on the your analysis sort of case we have these you know we have these numbers we're going to be able to prove it's you don't you don't have a defense year we're asking for the twenty eight years that conversation from way we can tell by the record never never happened and we don't don't mention one other thing the road conditions are so they could have had some you know some if the state even abetted that so i don't think that's a dispute that could have played into his defense as well where maybe the effects of the cocaine work you know were tailing off apparently didn't have these conversations with state and that's what's vital because those conversations then you take that information and you go to the defendant you say here's the information why don't you make a reason determination you're out to create with no paddle they've got you know they've got you they're going to ask for twenty eight years one way or the other so either we can them for ourselves on most of the trial court and you have a good medication and in a case like that it could have been a good you know a good sort of route to take but again the record doesn't seem to support that was the  i case was decided than they are today but i think that stands as a good example of proper mohnish means don't necessarily cure all problems with ineffective assistance of counsel in our case or in that case sort of the general you have the general circumstance now the three factors of the supreme court allowed on that case were the pressure from the prosecutor the hurried sort of the way it was it was done in a hurried manner when the defense wasn't expecting it to be you know the plea was it was done in a hurry mainly the defense from your regular tourney tower's me to tell you that it goes please the only way to go and work through we'll just get take care of it today it hit mr ellis takes unusual steps to talk to the prosecutor as if that's the right person to seek advice from he was clearly i mean even barry even admitted as he was not comfortable pleading guilty he needed some further representation is how you know the details of that discussion with the prosecutor aren't aren't in the record and i'm not going to going to surmise what what they talked about but he felt left at the end of that the end of these conversations that that he decided to plead guilty so we have these hurry we have a short proceedings we have pressure but we don't have pressure from the state what's worse in this case and this was back to my ineffective assistance of counsel argument of pressure from defense counsel to never show up we have been telling the associated knows next to nothing about this case plead guilty it's the only way to go they use that it's the only way to go over wasn't the only way to go if he's facing a twenty eight year you know potential twenty eight year the state's recommendation at least  state the state however sat well all give you a right i'm promising you that i'll give you a recommendation of probation right so i was the state's carrying case of the state was pressuring him to plead guilty yes but at the same time they were promising in return to offer the best possible sentence they could offer in this case there was no there was no there was not that there was one i barely you know no indication at all with the state's going to ask for and it turned out to be twenty eight years the maximum sentence of twenty eight years so the pressure came from defense counsel not knowing that the state was going to ask for twenty eight for twenty years and finally he wasn't you know another similarity between this case and the reality that it wasn't represented by his arguably by his counsel a choice that council may have told you back in conference or i don't care what your mother is telling you it's going to happen if you throw yourself on the mercy of the court you began your state that this is a blind or an open plea and i'm going to hear everything i'm going to decide what to do and i'm going to decide what sense to post and i've told you exactly what the what the outline right the sentences are now do  you understand that and are you willing to do those circumstances and he's told you anything to make you think that there is a promise or an agreement or side agreement that he's some and you don't have a defense you know are what we sent and then later you get the motion to withdraw with says oh my attorney tall b i probably only get three or four years or i was going to get to go home and promise never to do it again and you want to pull the guy off the side of safety luck you know we can't protect you against yourself right you have to understand you said he was admonished you have to understand those admonitions mean so now the flip side of that he didn't get much but the dollars that he paid for meager counts we understand there so what do we do it we mean is it if you can prove me i had cocaine in my system right i've got a record if i admit to myself what everybody else knows i've got a problem with cocaine i'm not going to walk out of this courtroom with a defendant sort of looking at it from what you know the best case best case scenario he's paying us attorney to give him that advice about this is what you're likely to get and what not like all right the best result and get the best all right now what is it unreasonable for him to think that he could all those factors still being so when he pays his attorney who's promising him the moon they're going to get you're going to get a man in the sense he doesn't have a long criminal record i mean he does have a record which consists of multiple traffic offenses right which are three you are number four and we've killed two people those are the patterns of use the person hasn't learned from their past experience now you could argue this is analogous and there still was a pattern of use but i would say it's not like i said this sort of the textbook granted he was driving a summer truck which i think could be used as a factor in activation but i don't think it's any more reasonable to say that he should have known that he was going to get a maximum twenty year sentence and it was on reasonable for him to listen to his attorney knew he was paying for the supplies and again  the point i want to keep going back to it's his attorney should have gone to the state and said what are we looking at here because in my experience i've never obviously sat on the trial court but in my experience trial courts oftentimes lessen strongly what the state recommends that's what i've seen in the records that i've that i've read that's why going to the state and asking what the state is fine if you know what they're thinking about this case again even in passing in the hallway as all the defense counsel to do it like you said he was such a  by you know there's this cloud of sort of self serving testimony over this as well had i known that the state was going to be asking for all this time i would have taken my my chances at a at a bench trial and i get i think he does have a defense with this you might also say that i indeed has a defense to the charge under the facts of this case and the reason why i say that's should be considered first because it does pertain to the strongly to the issues of whether the defendant had effective assistance of and whether the ends of justice dictate that he be permitted to withdraw his plea and also of course he wins on those grounds and there would be any necessity to consider the link sets because it would be set back for a trial so however the element here is that the violation the stationary language set is the violation of section eleven five zero one that is the proximate cause of that so here is the defendant's violation is not required paramount so therefore it's like two plus two equals five or somehow magically inserting this extra element of impairment into something where this case shrilling which is just not actually support the cases that are out there generally are the ones like johnson's discourse recent decision cited the history of libraries where there was actually two charges one which was combined out hoeing cannabis impairment and then the other one here which is is in fact apparent an element of aggravated u i based soley on the fact that the defendant was driving the time when he was not permitted to do so because had any amount of substance related to but they're going to anything wrong essentially other than driving in violation why law here the defendant's doing something from driving in violation to you like do you i lost was something else which is losing control of this truck crossing over the  line and then striking after losing control and crossing the center line so so is that element here in driving in violation at the time when he was not legal to do so that becomes the proximate dui charge the subsection issue in a different case but here if payment is not an issue because that's not an element of a misdemeanor dui that he was actually charged with so therefore if the fed in fact has no defense if he had a defense then he sensually is gaining nothing by pleading guilty except for the hope of a little less lesser sentence but he's forfeiting a lot which would be he's got this great fish he's probably not guilty because under his argument how barrett that's what the record says and there's a lot of speech here about what actually happened here and you have to be grounded in the record and try to put seems to except here it's testimony a lot more over defendants self serving and  testimony show that there was never any direct contact between the defendant and prosecutor who insisted on speaking through counsel so therefore with a good sense of the defendant's claim that i was told i was going to get only a three to four year sentence in light of his doubtful credibility on many other points and the conflicts in iraq and the record with respect to his other claims like for example he told that he hardly ever talked about the case but then there's also indications record that he discussed this knife with residue and was barbecue sauce and he had all these conversations with prospect about the facts of the case and contradictory his other testimony it was about the only spoke with barry for a couple minutes and other evidence show that well they closed the courtroom and let him speak off and on for a course like thirty minutes and eventually then he said ok i'm ready to go through with this and also he disputed about whether he was ever told you can continue the case so that the president could be here as coun choice and he says no i was never told that first where it says he was so therefore in those circumstances the trial court does not have to accept the defendant's testimony that where he claims i was told i was only going to get a minimum case it's kind of overstepping what strickland would require which is to guard the independence of counsel and to not impose many requirements such as the a p a standard cited in the defendant's brief as being constitutional standards that are letters of her of support defend this purported good character so we conditions remorse all that stuff be thrown in plus maybe press that might have had experience with these sort of cases and on the trial courts are generally lenient in cases particularly where bennett says maybe there's no showing of actual impairment so therefore maybe application of the statute seems kind of harsh from the defense perspective and maybe that might militate in favor of a lesser sentence that is in fact a crucial consideration the definition be required to actually make an evidentiary showing our allegations and post conviction review rather than have this court merely assume respectively so jumping back i'm ejection by the prosecutor and undue pressure that that's that's definitely not at issue here where the prosecutor is not directly involved in any of these consultations defendant has plenty of time and an opportunity to wait conviction but then the other charge contact from two thousand and two and even the prior conviction from one thousand nine hundred six shows this guy's pattern of cocaine use can go back twenty years and him being a professional truck driver it just leads one to perhaps large it's heavy it's moving fast and this case got a pattern of cocaine use so mixing a professional truck driver and pattern cocaine use where he's had multiple opportunities perhaps to change his style his place and and  avoid that substance abuse it shows that it's needed it's necessary substantial sense here is necessary to deter such use by professional truck drivers controlled substances so although he part of the state's argument was let's to this court don't assume anything because the defendant can prove you had some self serving testimony and you can't prove whether there's you know a lack of this conversation or some of these other some of the factors chris i didn't and i recognize that that's what this comes down to if this is not where the wind is strong i can't imagine a situation where where where the wind would be from yesterday i was got no essentially no representation and what is he supposed to get was he supposed to do in th isn't one of those situations where he says well a train told me i would get a minimum sentence and i ended up instead of getting six or three or four seven getting six i got twelve was dull i was really that's what he got twenty eight years he got the maximum  i don't understand how presence in your system can be approximate cause if it's not if it doesn't require intoxication and that's all i'm going to say about that but with that being said by argument does is premised on this as as a defense and it is undermined if that if that offense isn't present but