cases and he ended up getting seven and a half years on one and seven years on the other and arizona when you plead guilty your only avenue is by what's called the p is given a notice to sign that they have those particular rights he refused to do so at that time trial counsel was a public defender the public defender in tucson arizona have their own appellate offices however that time he consulted with mr marshall regarding any issues that he wanted to bring up to compound the problem when he filed that he then after the prior court denied that particular p c r petition he then appealed it but the main problem that this particular case has your honour's is that the p c r petition when he filed that he requested that the court simply search for fundamental error or an anders type of a review of that particular case now in arizona it's the strings and get the raise any errors on  that because that trial counsel was ineffective that he should not have waited till you know you're on the remedy that he has is by post conviction relief that's what the piece i know that but if appeal goes to the actual having the prialt any infirmities regarding in that particular area not what mr marshall determined that he that he had had ineffective counsel when he had been sentenced what he considered to be a dangerous nature sentence when the actual plea agreement and not speak of any dangerous nature allegation in the plea agreement itself that's the issue that he had with trial counsel hence that's what he wanted to raise in the p c r which the p c r counsel never discussed with him to include it in the first petition so it could be ferreted out that's the issue that's how we came to be here is because once haven't addressed that question well your honor maybe i'm not making my obviously i'm not making myself clear but the postpone by arguing the merits of his position not whether or not he w that's exactly what i'm saying is that the petition itself the ineffectiveness that came that occurred in this particular case was compounded when the attorney for the in the post of conviction relief arena in effect of assistance of counsel claim and the issue becomes really the prejudice becomes when he was not consulted on what would be included in the piece in the first p c r petition hence once that is established he has suffered that particular prejudiced whether or not it's going to be successful will not have we don't know yet because we he has not had that particular here in the trial court regarding the ineffectiveness of counsel but at this particular sorry requiring what issues he wanted to bring up or had counsel simply had some sort of documentation indicating to them i am not filing a p c r petition or i'm not pursuing this any further because i don't see any merit you mr defendant pro per on your own can file whatever issues you want to bring up none of that is in the record your honor hence all he needs to show is had he been consulted about what issues should have been raised that's enough to appellate counsel did not consult with him regarding a certain issue of what they wanted to raise whether or not it would have particular merit is something that has to be addressed during the evidence or hearing that's the problem in this particular case none was ever had and that i understand what the what you are saying judge is that we need to somehow in the general scheme of strickland is that you need to show what prejudice resulted from not having the hearing but what we do not know in this particular case if if mr marshall had had the hearing regarding the ineffectiveness of the trial court counsel for not objecting at the sentencing phase regarding the dangerous nature allegation that it would not have been the actual ple agreement that he had and the sentencing range would have been lower the way it is now with the day for day type of sentence that he receives because of the dangerous nature allegation of it because clearly you have to show precious if he was going mad and proceeding arguing a case before the court of appeals but you're as i understood your search for fundamental error and we're not even going to do it because under state versus smith we don't have to when i'm going to do it and that's what happened so he didn't even get that are you saying that y the court i believe all start off by clarifying just a seamus question about whether or not you can waive direct appeal and how that actually works in arizona the defendant does by right now another thing you didn't raise and i assume by now raised you you agree that in a first p c r protection in this kind of a case where the different pleads guilty counsel filed what was considered an anders brief and respondents say he was not not in appeal he got not only the direct appeal that he was entitled to but also a discretionary follow grief on his own music in the court i'm sorry he didn't tell me he did not tell mr marshall that then he had a right to file a brief on his own to raise any points he wanted to and neither did the court i want to tell mr marshall that this review the record review the pleadings and disregard any imperfection of form strike and event this this is what happened in arizona the court expected that cleaving didn't find that it was  that there is an opportunity to file a brief furthermore as i read the ender's brief indication like smith first robinson decided by what we need to hide is whether or not he has his constitutional right to an adequate and effective appeal and the state says that he does because he managed to have and if you want his and his cruel and refused that it's written on it's part of the state's s t r i believe ten page ten or eleven written refused on the bottom that's one indication that he wants to appealing certainly he would have acknowledged that right to appeal but that's not all we have in the record when the defense counsel filed his rule thirty two he did copy mr marshall there is nothing in the record to show that mr marshall found any defect with this pleading and in fact he filed with the court of appeals or with a clerk of the court to notice complaining that his appeal had not yet been decided this is the same feel that was filed by defense counsel cheatle of thereby adopting that appeal on his own he could just as easily have sa this appeal does not represent what i wanted to bring to the court and he did not complain about that and then furthermore when he was given the opportunity to file a petition for review with the errors on the supreme court he it reduces the scope of the potential issues that he can bring on appeal and in this case heart must consider whether he received the senate said he bargained for and he did  to last two separate crimes yes and he also acknowledged that they could be imposed consecutively yes so he did have the benefit of his bargain and that plea whether or not the anders the thing that concerns me is that if he had under under floors ortega the defendant had no access to an appeal at all the  had the same thing yes all right so that was filed now what puzzles me is we seem to be in a hybrid situation of whether it's an amber spring or whether the your attorney is perceiving to to represent not affected didn't he say this this this argument has no merit that argument has no merit another argument has no meri anders approach but it's misapplied because because the attorneys not supposed to say all these things have no merit just post say i don't see any merit the best argument that can and if they do they granted if they don't they don't but he or he not only made a very cursory reference received the benefit that he had bargained for and that there was no prejudice whatsoever to this defendant so the state would disagree with that you have prejudice presumed under three circumstances if you have it may be a serious deficiency around or there was no pressure on us ok thank you shown after he had been able to file a brief what he would have been able to show your honor is that in the plea agreement itself it indicates a certain type of sentence that he would be receiving he did acknowledge  it we don't deny that your honor the issue becomes when he was sentenced the judge found it to be a dangerous nature allegation in arizona in a dangerous nature allegation instead of an eighty five percent time that you're facing it's a day for the type of sentence and then that takes it out of the category of when he would have been released he still is in custody to this day but you know i couldn't hear them sentenced to the seven and a half  supplement page number one by the state there is nothing in there that talks about that it is a dangerous nature allegation in arizona when you have any type of crime that one i pleading to a specific count it generally i practice there it is count three dangerous nature allegation or robbery whatever credit indicates that amount which then brings in your honor the actual dangerous nature allegation that is a subsequent pleading in this particular case all other allegations are being dismissed in this particular case well it couldn't have been sentenced to the fifteen years whether it was a what's the problem well well first of all the problem would be because of the dangerous nature allegation makes it eighty five percent or good kind great if that one gets the day for day type of sentence so seven and a half years means in arizona the dangers nature seven and half years if it was simply seven and a half years non dangerous it's eighty five percent time whether it be seven and a half years or fifteen years it will be less time and that's the take away is good time credits and that's what the carrot is for the individuals the inmates for them to look forward to to be released that the president is that he suffered that's what he understood from the initial pleadings that he had in the plea agreement that's why he refused