or fail to record it or fail to take the child to medical care so through in order to be convicted under this particular statute in this and it's set out in full with all the other definitions on page thirteen of the open person and really the only way we can do that is look at the jury instructions which were not produced or the will of the judge the judge taken to make this decision he didn't have before although you can also look at the charging documents the yes you can your honor but i if you're correct and we agree with you i'm not saying we will but if that happens where does this leave your client right now in what is the sentencing guidelines and  am if that's under that that's under the sentences imposed right if the sentences corrected which should be released well it's kind of difficult to tell because when she was soon as no three years before you get any further notice that she's out of jail well just you could take that one should be gone before we get that resolved but i think we don't have much of an option here in that respect just i mean i mean i think we could resolve it here but the circus that otherwise in terms of the government getting a second chance to prove or at least bring the documents and try to show that just record that this was a she was entitled at this church and it takes us six months to get together and have the government meter now you have something you like to respond to depending on what twenty six cases such as we have here are because they're going to judgment of a court that there was a sentence and the question is not whether the sentence was imposed and can be proved the question is what's the import of the sentence like the statute under which the conviction was again and that's not a blakely problem you couldn't submit that question to a jury now you know that i had a whack at it and the question is did they what elements of that crime state crime did they rely on and how do you and played to a court according to the charging document and what she pled to and it it's in the appendix to me three for the judgment a conviction that there was substantial bodily harm it was charged with substantial bodily harm but they they do use that the words abuse and gordon to collect which resulted in substantial bodily harm in both the charging document and the judgment of conviction what if you parse the information favorable to her she was charged and with and pled to causing or permitting in this case permitting a child of fourteen months is fines what abuse neglect is and it says they non accidental nature and that's that's a lot different than what happened with and negligent yes or it need not be physical violence it may mean or mental correct but that's not it but that but that's not what she pled to the internet that's the when you use a piece or neglect that's the meaning of it means physical or mental injury correct john how the jury didn't distinguish between the two did it well you're under the ice cannot conceive not i do not have no knowledge whether or not there was a jury trial on this because that is not in the record at all the only place that was very finding of a court anyplace that this was other than mental abuse yes your honor the the judgment the judgment of conviction of what she was found guilty of is only causing substantial bodily harm not mental enters the so while mental is included in the statute what she was charged with and what she played she specifically  what she pled to ok and there's no and what she pled to specifically excluded mental abuse is focused only on substantial bodily harm and the definition of ok let me just slow down and i'm looking at the judgment from the judgments that she was guilty of the crime of child abuse and or neglect causing substantial bodily harm so it's not mental by virtue of that in any event and you're saying that negligent treatment as judge what you're so if it's negligent treatment that doesn't have anything about not an accidental or you say not an accidental modifies everything that follows not a accident not an accidental nature means not an accidental sexual abuse not an accidental negligent treatment you're right i hadn't read the statute to where that there was a separation that non accidental force against a person or property of another may be used in the offense and in this case neglect of a child is not the same as a negligent homicide in the dui where from the from the queen ok so in this case there  an affirmative act that it happened here there was a purposeful neglect of a child at risk that resulted in substantial bodily injury and this physical force result that wasn't charged mr purposeful was not charged  objection below as to they as to what happened below so there's been no proffer there's been no there's been there's been nothing put forth by the dance on that aspect if you're a burden on the sentencing correct your honor and if there's an absence of an objection i mean if there's an absence of proof by you of the contents of the arizona transaction or criminal proceeding it was your burden of presenting it your it she did not object to the fact she objected to the enhancement she did not object to any description as to what had to reliance on the p s r and we have our law says you can't rely on the p s r the judge below did not rely on the p he pointed out to her that he was relying on case law not the p s r oh why are you so my p s r then well i'm to carry your burden of proof because because there are certain things up in the government can present is that it can present thank you very much thank you very much decision the next case on the argument calendar is united states versus humming