five days of trial at the time that he entered an open plea to all of the charges against him these charges included first degree murder and special circumstance felony murder at that time the evidence against him was not sufficient to actually convict him of those charges also before he pled the trial judge warned mr sure word that he would not show him any leniency in exchange for his open plea and that he had a nickname of being called the hammer despite that warning mr sherwood proceeded with his plea mr sherwood has presented sufficient evidence at the courts below to now and there and evidentiary hearing to show that the reason for his plea was that he medications while in the care of the county jail in addition the types of charges that he was charged with required a finding of the requisite mental state where mental illness would have been a fa in addition his at the time that he was represented by trial counsel he was undergoing different situations at the county jail where he was placed on suicide watch because of attempts to kill himself and he couched in terms of coercion and so if you could just help me understand whether or not there's any exhaustion question regarding that first claim i know you have the second claim and i have a couple  question number questions to you regarding that but i just trying to figure out percy truly what what how do we analyze this first claim in light of how it is this changed and what can we draw from the mental illness from the from the second claim as evidence of the invalid plea and how it was presented in the first claim that makes sense so mr sherwood presented a pro se claim that his plea was invalid claim that braised ineffective assistance of counsel has always been this claim that he was incompetent to plead the prejudiced prong of the i c claim requires that th court analyze whether or not mr sherwood it was actually incompetent pleat so separate from his pro se claim that his plea was involuntary within the claim of i see there has always been this claim that he was in fact incompetent to stand trial and it's an issue that comes up in both problems that i claim because on the first hand there has to be a finding whether qatar counsel was deficient in failing to investigate the mental health problem whether in fact he was incompetent so you think the facts pertain to that claim were raised in the state of petition and you know in ground one which was about that melody of the plea do you think that there was ned that he was suffering from mental illness and that he pled as a result of that mental illness within the i c claim let me ask you a different way do you know of any i guess thore that allows the court when determining exhaustion to look at the facts asserted in other parts of the petition i guess such as another claim in order to find that the petitioner fully and fairly presented all the five and then there's another case loans very versus thompson which is three seventy four f three the three seventy five and wells meanings twenty f three the one zero zero five in all of these cases the petition had only raised one claim but the court found that the claim was either sufficiently related or encompassed the other claim here mr sherwood was per se and so because of that this court should liberally construe his pleadings and that's another reason that this court should construe that his claim had been fairly raised in the court below  raised what time and what's the best evidence that you have you have and i know you have a lot but i just was hoping to kind of get your best friend mean that at this point in time so as i indicated mr four mr sherwood suffered a number of incidents at the county jail including being placed on separate medication and having asked suicide attempt which all occurred during the time that he was represented by trial counsel in addition trick trial counsel brought a motion to suppress the confession and part of that motion to suppress was you had to really analyze what was mr plead guilty why would need the if we if we if i could if we on your ground to your second claim found that there may be sufficient basis to either brant relief or send it back for  do we need to address count one and what is the relief you're seeking for count one and is it any different than what you're seeking for count two at least that's my way of asking it and maybe a similar type of question i think the relief that we're seeking would be to ultimately feticide mr sherwood's please because i have in count one and count one and how is that different from what you're seeking  count two it's not so the relief that you're seeking in count one is no greater than the relief you're seeking in count two correct i'm calling it count two the could still try a correct you want to reserve the balance of your time yes i might let me ask the question before you do i would estimate that in probably says and i don't want to overstate this but i'd estimate probably  seventy five percent of the cases that i have on the criminal docket back in montana that in reading the pre sentence investigation report i realize we've got to speak court proceeding here there is documented a history of some sort of mental illness ranges from drug addiction the the depression anxiety antisocial behavior p t s d bipolar schizophrenia you name it and by that seventy five percent of those cases is it is it your position that defense counsel and every one of these cases would have a duty to investigate the psychological problems term incompetency or for use an ineffective assistance of counsel claim another words where do we where do we draw the line in a practical way certainly in this case the evidence was sufficient for him to have that burden to undergo that investigation in some cases there may not be depending on the situation of the client there's been cases where there's been a prior competency findings or what counsel has and had to do an investigation later but overall if there is evidence in the record that suggests that our client does have mental health issues it is it is counsel studio to investigate the mental illness before deciding what avenue they're going to take for their investigation as well as for the presentation of the defen appellant has not presented any evidence that would show that he was incompetent at the time of his guilty plea there's certainly evidence to show that he had some mental illness such as depression and bipolar and was taking medications at certain times but there a large gap of information surrounding the one and a half year period around his guilty plea with respect to the first claim that how it presents our position is that that is an exhaust because the both state courts and district court never had an opportunity to squarely analyze that claim admittedly there is a related analysis within the i c claim but they are separate claims involving initially a duress claim with different facts and then the i c claim as it was presented to state court and district court was that the i c was based on a failure to investigate his defense and other  aspects of the representation and then a minor part of it was a failure to investigate his mental illness and now it may diddly the same facts were looked into by the district court as with respect i see crime as we are now looking at on one review of another layer to judge murky as question which is we're dealing here at this point in time with a pro se defendant correct not have been deficient but i guess what are the cases that require an attorney to have actual knowledge of mental impairment or has a duty to investigate  sufficient i thought we had case law that says that the information was readily available to mr belcher here and fact there's an additional claim here that the petitioner told him of his problems mentally so i'm just trying to figure out what the basis for your argument there well if i could my argument in the brief was more focused on the fact that  there's no evidence to show that the mr beltre was aware of an incompetency even even if he were aware of the fact that appellant was suffering from depression or bipolar our position is that that wasn't sufficient to show that he could not comprehend the nature of the proceedings against him and also effectively assist in his defense so even if there were evidences of well there were evidences of suicide attempts and depression and counsel is aware our position is that was not sufficient enough to show that there was a sincere doubt or a bonafide out of incompetence such that appellant wouldn't understand the nature of the proceedings against him and so i mean it sounds like  challenges are illnesses i mean if you look at the list of everything even just within the piece pre sentence report and it seems like we have case law evans versus lewis and  investigation into the available records who were discovered evidence of the client's psychiatric problems and in those cases that we found the deficient performance where the documents were available to the attorney prior to the first sentencing hearing that that was that was a problem and was able to get relief i'm just trying to figure out why isn't that same case here soon you're saying that the presumption is that he was the counsel mr belcher was aware of all the documents and therefore we impute what even if he was it seems like the records would have been easily and readily available and we have i guess decided in the past that that's enough and it just shows that the lawyer you know is likely ineffective if you have records that show such compelling information regarding the psychiatric condition of the petitioner and there was nothing done to even do the minimal review especially in this case when he was had reason to maybe know that there were problems well part of the problem with this case is that there are so many pieces of evidence that simply aren't available to us and at present point in time at this point in time but they were available to counsel at the time correct in two thousand forty thousand there are some records from the jail as i recall the subsequent psychological evaluation that was done by i can't remember the doctor's a name he had two hundred pages of documents i think that were from the jail setting and other documents that he was able to look at which led him to the conclusion that there was a question regarding mr sure what's competence well there was certainly admittedly a large amount of documents that were in existence at the time right nonetheless even if we were to assume there was some deficient performance based on that lack of investigation appellant is unable to has been able to demonstrate any actual incompetence such that the prejudice problem would be you since i started this to the change of plea and saying there's no evidence that was presented at the time of the change of pl indicate a lack of competence but doesn't that really sort of beg the question i mean if counsel had undertaken a psychological exam had gotten a psychological exam for his client during that period of time might it isn't it entirely possible that would have revealed that there were some competency issues here based on the evidence that we have seen it does not rise to a reasonable probability that the outcome would have been any different based on the evidence that you have seen surrounding the that time frame of the change of plea well the records of his medical records from two thousand and four to early two thousand and five and then there's the gap around the time of the plea and then subsequently the magistrate and judge industry court judge found that between two thousand and eight two thousand and ten there was some sort of incompetence but that one and a half year period between between doesn't demonstrate a reasonable probability that he that appellant would have been found incompetent such that he was unable to understand the nature of the proceedings against him even if there were evidences of depression or bipolar at such a higher high standard to show that he was incompetent such that he didn't understand the proceedings and there is a presumption of verity as his own statements and aside from that the trial court itself never demonstrated any concern regarding palance competency the prosecutor never raised the issue and that's what i mean that sounds like i mean you know the facts here pretty well  here he was in trial and also nice sides he wants to plead to everything including his you know his prior strike i mean it seems to come out of the blue i mean during the middle of trial  there that he had this attack that you know seems to have affected him psychologically the razorblade attack and then at sentencing i think it was in october of two thousand and six mr sherwood sent a letter to the judge he was on medication and that his case was he made a reference i guess to a death penalty case that was supposed to have a panel of attorneys and the judge i guess directed that be sent to his his to the public defender's office i believe that is correct ok and it was it's not clear to me that mr belcher ever got it but he mr i'm just you just said something about the judge never saw  indicated anything but when you look at the history here especially right before sentencing not only did he send that letter mr should would set a second letter to the judge requesting transcripts and again complaining of that mr shoreward wanted the death penalty and then it detail the history of of mr sure which seems like it was rather a you know a troubling one and included that he was taking medication for depression and that his attorney and made a reference to some ninety day psychological evaluation program at c r c it seemed that there were a number of indicators  during this time period that would have reflected some mental illness and then later we get this letter and i want to get your take i'm not a letter  psychologist or psychiatrist who evaluated him not even though he interviewed him he was reviewing all the information and reports at the time that the relevant time period so what  we to make of that what's your position in light of all that evidence i'll have to break this down into a few different points so why would he plead guilty in the middle of trial he stated in his in the probation officer's report that he wanted to save his family from the remainder of the trial and the prosecutor had not admitted all of the evidence that he appeared to be prepared to admit which included the polygraph interview which had substantially damning admissions and high level thought processes about his conspiring to rob his former employer with specifically with the quotation he told his associate if they have to shoot someone make sure the other guy shoots him too it's old school that when one person shoots everyone has to shoot which that was in two thousand and four right before the razor blade attack that did predate the guilty plea by two years but to answer your question about why would he plead guilty he basically stated he did to save his family from trial and no plea bargain would have been forthcoming at that point in the trial anyway and with the respect of the probation report no knowledge that he made some misstatements regarding the death penalty but he also in the same probation report said he would more than likely get a life sentence and then subsequently he pled guilty to say family from trial  that sentencing he made another statement on the record saying to the family i do apologize to all of them i pray for you guys every day i pray for alan the murder victim and i gave my life for it i'm sorry but what about the medical records from the from coming at that from the west valley detention center it noted that prison records reveal diagnosis of six schizo disorder depression with psych katic features psychosis not otherwise specified and he had been treated with psychotropic anti psychotic anti depressant and stabilizing medications he had a family history of mental illness and substance abuse had been in a car accident that revealed a severe trauma to the head i'm just you know if his lawyer had just looked at those records he would have found that it looks like we have case law that says that the lawyer you know should have at least done a minimum of investigating that so i'm just trying to figure out you know what what's your best response is to that well so that the psychiatric report by a doctor or the took place seven years later day he had knowledge that he did not have all the records at the time and he basically speculated that he would have been and competent at the time of the guy but he's doing it based on the records that were it which is different than some other cases i mean looking at records that were in the the jail i believe it's the prison medical records and this and that seems to be a material difference from what i can tell that wasn't my reading of the report and i could be wrong but my understanding was that dr levine admitted that there was no records between march two thousand and five and the guilty plea in two september two thousand and six and i think it's important to also look at his first analysis which mental illness waxed and waned over a longer time and at the time that he actually performed the evaluation he was not suffering from the same level of mental illness so i think even from that statement alone it's unclear how we could establish that a ineffectiveness the ineffective assistance of counsel claim correct that's correct but i also heard you say in response to judge gould question you want us to remember also for a competency hearing not for a competency file which started in two thousand and seven through two thousand and eleven and competency evaluation he looked at what records were available from a detention center at the time as well as other medical the records from mr sure what had been destroyed in addition when you look at the records there's references to him being my patient and but there's no related evaluations by a psychiatrist or corresponding l the medication that should have been part of the file at the time so just because there are any records from the time period of his play doesn't mean that there weren't at the time that he actually pla representing him this record reflect that the documents that were later found missing would have been available to attorney build for the time yes the destruction only happened subsequent  to that date all right and the closest in time records that are available are two months after his plea when he's taken to airheaded medical center and in those it's not it that he's suffering from depression and is prescribed to  even on the table and the records then that mister beltre would have seen versus i guess i'm trying to figure out what dr i mean did he get his guest there were missing records of the time he did his evaluation correct and what do you know what records those were how extensive the records were missing at that point in time we do not know how expensive