counsel may please the court my name is joshua bernstein hooks i represent donald sturgeon the appellant in this case i intend to focus on the first and second arguments of my brief which are at the sentencing argument and the is going to follow its holding in johnson and find that the recent doubt argument here which waved in focus really on the ineffective assistance aspect of this i think in the larger context of this case counsel's failure to challenge the distance of the school from the house and the amount of methamphetamine found inside the house in light of counsel when you say counsels will you to challenge that it may have been that this room was not mr spurgeon bedroom he cross examined the state's witnesses extensively on so are you suggesting some cross examination with respect to the distance counsel had cross examined regarding those matters would that have provided the state an opportunity to shore up or strengthen its case and come back and possibly say oh i did actually take a measurement of the distance  measured it myself after testifying to that or something of that nature i think it's altogether possible i think you're getting to prejudice but the fact remains what i'm getting to is strategy counsel was operating under a strategy i i don't know white house strategy would cause you to challenge one element of crime and not the other aggravating element i guess just thinking about it with respect to the allegations you know no one saw him cooking you know he was pulling up to the planes when this occurred the facts are a lot different and the risk would be different th asking for going into did you take a manager man or how do you know that that's the measure man you see what i'm saying i see what you're saying but on the other hand the mr sturgeon pled not guilty and particular actually the inspector meister who's the the one who testified about the the measurement his testimony strikes me hold very much as the testimony of an officer who is trying to avoid hearsay this is something that you often hear in course of investigation testimony it's just not good enough to say i have learned and i have to say that when i read that testimony was i learned that's very awkward you people don't talk like that and so it definitely caught my eye but i guess i'm concerned about the fact that we have to look at this in the light most favorable to the state and so what inferences to be drawn from the statement i learned her i think your honor that the question of inference is it really gets to the heart of this because we need measurements and we need scales because we cannot trust human beings to eye out it a distance to way out something especially the kind of precision that's required to find someone guilty of an aggravating factor like the distance between the school in the house and the the minimum or maximum amount of methamphetamine that's in the house so i don't you know i don't think it's a reasonable this court i've not come across testimony like this and i'm what i go back to and what i think we have to go back to the respect of the inferences and respect the prejudice is the burden on the state substantially increased mr sturgeon sentence whatever the end result of that would have been had they stayed proven guilty beyond a reasonable doubt had the state said i used a roll of tape i walk whatever you know however you used the roll of tape which is the standard practice that i've been exposed to with respect to measurements they would approve an aggravating factor but you know i'm coming from the position that there's a was that was a wayne case and so what was missing in that case was the testimony of the chemist who weighed the the narcotics that were that were you know the weight of which was an element of that offense and i think if you're not going to you know if if you're saying that the the prejudice is speculative here i think if you take a look at me or mine test that was a case in which there was an element missing and strategy i think if you really mean if we're talking clever defense strategy counsel stipulated to the fact that mr sturgeon had thirty six point five grams of meth them out of pseudoephedrine which is the pre the basis of the precursor and there you know that evidence with respect to that had to do with actually the evidence of his arrest which really focused on whether he threw the jar of of methamphetamine but counsel stipulated to the fact that that was him and what the weight was and didn't really challenge that it was found on him he could if if if counsel was worried about getting into this smart counsel might have stipulated if he knew that this was the distance and that the state would prove it and that somehow it would you know went to this very question if counsel knew as he might very well come from police records that the state could have done a much better job of who's sitting shrank underlying these factors told him that that's the distance then counsels certainly ineffective because that would be the piece of evidence you're you're claiming is missing this that you know the prejudice and i want to know do we know do we know if there is more if they actually had in the police reports that someone as you know we don't we don't get the discovery your honor and i i could find nothing in the record that i received which is the record that you have before you discussing anything about what counsel knew and didn't know didn't know and i think this this also ties in to the detective hayes's testimony about scale harlem which i think also shows you know if you like tunnel vision to me that you would let this go and you also let the scale go without being challenged i mean that the detective explicitly testified that he didn't calibrate it he testify that he didn't calibrate it but he testified that he checked using known weights which seems to be pretty consistent with put the expert from the crime lab testified to this tip as far as how they make sure that there scales are waiting properly i'm not sure standing here today whether the crime lab  and there's also his statement something along the lines of i checked the internal parts with weights which you know you and i will be honest here i'm not an electronics scale x per and i'm not exactly sure how you calibrate an electronic scale i'm not exactly sure the jury understood how you calibrate an electronic scale this is the problem and  that were left unsaid and perhaps confusing to the jury would now be all cleared up oh well that's the case now i understand that i'm not sure i'm not sure of the extent to which this played out in the closing argument that would suggest it's it's a strategy but he certainly did not challenge the distance between the school and the house i'm i'm not sure where i'm at on time  think the ok what i'd ask you to consider when you look at this the sentencing here is the hendrickson case which is out of the district court of utah and which in gauges it made it in a federal in an examination of the mitigating of facts of addiction culpability and i think the judge in that case is far more eloquent than i and goes into great detail about that but i think that the takeaway from the case from hendricks and is that there is a great sense in which the it's specifically methamphetamine in fact requires the human brain to reduce the ability of a person to weight the consequences of their actions with their short term and the judge in that case actually analogizes it to the the effects of youth you know the miller gram  the lack of development of a young person's brain and that it it takes away your ability to wait how to type this and i think here the judges statement in the sentencing hearing says everything about what he believes methamphetamine addiction is a lifestyle and i think that is really as i said in my brief weaponize seeing a illness i just might be read something to you  opinion i'm not sure it's a i'm not familiar with that case your honor but i think that what this case shows is that a failure of the judge to understand what addiction really yes i'm not contesting the fact that this man manufactured drugs and sold drugs it's clear from his counsel i'm sorry you're out of time which i will have additional time i don't think you're on grams or more was proof by the evidence of the officer who checked the scale against known weights which is sufficient foundation for the testimony because they verify the accuracy of that scale so there is no need to calibrate it if the officer checked against known weights and found that it was accurate i think the calibration issues kind of the red herring and it certainly does not mean that the proof was so and satisfactory  means that it can be reasonably sure that the yet still be accurate and that's enough to constitute proof beyond a reasonable doubt whereas in the other case where there was no contest made on cross examination with respect to the basis and even if it had been here say it would still constitute proof if it was not objected to so they don't they do not get automatic reversal or outright reversal on the outright reversal on the basis of the failure of the defense attorney to challenge the foundation for the officers opinion because the author's opinion constitutes proof beyond a reasonable doubt it was not me but it was a not contested and see officer giving an opinion i learned it was six hundred nin well if it was in fact measured which is not clear from the record then they could constitute as you said facts however here so you're saying that the state didn't have any obligation to measurement fact had been measured but for example the hypothetical could be that the house was across the street from the school and the officer eyeballed it and thought it was less than fifty feet and then their claim is well absolute proof is necessary that it had been measured with a calibrated measuring wheel and lacking that state failed to prove beyond a reasonable doubt that the house was within a thousand feet of the school well this court would probably save all understanding to jurors common sense and understanding their experience with the how wide a street is for example they would know that it was within a thousand feet well here was six hundred nine which is not close to one thousand if the testimony was it was about nine hundred fifty nine hundred eighty six  officers asked did you learn it was within a thousand feet and the answer is yes and that's all we have but that's all the evidence we have the only evidence in the record is that it was within a thousand feet i mean i think even less the sceptic but the cease position that still proof as proof without objection so i mean that's really only question whether it's proved a separate question here at the end of ineffective assistance they're stuck with this record this record has so many unanswered questions so what deepak defense counsel would have known like for example police reports and because because the record doesn't show what edition question would have would have revealed you cannot presume to support have presumed that the additional were but this is this is not a situation where this court has any means of knowing that it's far as my understand we're the only speculating as to what a new trial on the basis of a record that does not overcome the presumption of strategy because there's no basis for understanding whether councils conduct was an reasonable because they don't this is the record doesn't show what it's like was in the police report for example that would have presumably reached the council and i still cannot determine whether there's prejudice because that's an important element when you've been found guilty of the elements if further inquiry be made if we don't know the answers what opinion it cannot be determined whether the council's conduct was some reasonable because if counsel knew for example that it would have if it were in fact the case from sky every he would have known that further  undercutting his own argument where is he could have just argued the lack of the uncertainty as a matter of reasonable doubt to the jury whereas if he sure that for the prosecution then that would actually possibly been ineffective to do so so that is the fact because there's no way for the state in vermont taste to prove the weight of the evidence after it had been coming over because the course not an opportunity for independent testing prior to the coming willing that stipulation is subjectively reasonable and the record would have supported that in that case and that's why i could be resolved that's the complete opposite of the situation here with the records not adequate to show their claim of an effective assistance and the record itself with sufficient evidence in the record w the standard for proof beyond reasonable doubt i have a question where this measurement case i specifically remember involved in nature it involved a dispute over where the officer as the crow flies because you hear possibly use a survey's major you know those rolls if you're having to go through people's houses or you know structures you could go around houses and add to the measurement if you still get within a thousand or if you get well under a thousand without having to necessarily measure a straight line because not mission straight line is going to just add distance to it which is this which is right you cannot take distance away from a straight line measurement you can only add to it so did the distance is still something like six o nine not straight so the basement would be walking with a right of those wheels right and if it got close to a thousand for example the case where if it was determined exactly where the one end point was cannot be determined for certainty but if it's like nine fifty and we don't know where that end point is then that's a reasonable doubt of guilt six zero nine versus you know how far into the house might it be it's so far away from a thousand that it could be the worst with their common sense and experience to understand how far into that house could be another four hundred and i'm sorry three hundred  measurement leaves a lot more room for reasonable doubt and that's why six hundred ninety think makes this case not appropriate for reversal words there's no officer here it measured at nine fifty i think they would have some serious claim about about where that measurement ended and exactly how it took place i think that would have made a much stronger case for reasonable doubt with respect to the sensing argument the their claim is that the lifestyles been weaponized that the illness as a from his prior treatment opportunities in prison and still has a substance which means that when substance abuse addiction is cited as a mitigating factor in the court and that the trial course responses will yes but you've had multiple opportunities as an aggravating factor for example as opposed to simply recognizing a reason why that mitigating factor should have less weight than was argued by the defense and so there's also no clear showing that the trial court somehow punished the trying to concession i do believe from my conversations with the circuit clerk that that would be the costs were imposed on a per count space this in and of her complaint basis and that's something that would need to be remedied whether it's either by  and and remanded her to you know however i'm not i i don't even know what procedures are in place with respect for seventy two is what i'm trying to say your honour's i just wanted to step back briefly to the to counsel's comments about the mitigation in sentencing and she said that the court identified the court trial court stated that he you know mr sturgeon failed to profit from actions i would like to point you honour's to be the pre sentence investigation report here there's nothing in there that says that mr sturgeon did not avail themselves of options while in prison or even what those options are  which comes back to my larger point that methamphetamine is a very powerful drug and this is more i guess a policy statement but if you're going to treat someone for methamphetamine in prison and then let them loose even on probation mr sturgeon is an example of what can happen when it's available this is a very very powerful addictive drug and maybe he got all the gold stars on his chart in prison for treatment i don't know but the point is there was no the judge said he failed to avail himself and there's no evidence in the record at all including the pre sentence investigation that he failed to appeal and solve any of what was available and i what are we  to do going with differences between drug or we need do we need expert opinion regarding that methamphetamine addiction issues so much worse or so much dynamic is so much different than heroin addiction or any controlled substance i mean i assume that if you're in pain if that's how your oxycontin addiction starts that unless the pain is gone there's just a greater risk of relapse i don't disagree with you about considering addiction and making it some cases of said it's a two edged sword but do you treat defendants differently depending on what they're addicted to i think actually this this case is an example of how methamphetamine is different number one he came out on probation started probation and started manufacturing and consuming methamphetamine he lived and slapped next to a methamphetamine lab which he police would not touch without and i think you know that's not to say methamphetamines the worst but i think finally you can look at what the legislature did these are super acts felonies right and i think that kind of gives you a layman sansar unless you have any other