every part of the criminal justice system fails mr trowbridge you've denied one of the basic important rights designed to protect defendants the right to know the penalty every criminal case against one agreement the purpose of the room and is not nobody told him because nobody knew there's an enormous difference between the possibility of one day being free and the certainty of done behind bars and he referred to yourself so let me ask you a question order to get a plea bargain is accuracy of your honor he the only reason he could not sleep guilty on the day of trial was because it was on the day of trial and passed the final pretrial conference date that was the reason the trial court gave for not accepting the fleet further he did submit an affidavit during the appellate process stating that if you had known about the penalty he truly face he would now you go ahead i just want to make sure i understand my understanding was the district court would not accept a no contest plea is that not correct your honor that the reason the district court and establish a factual basis for gets the the question i had was he had the affidavit doesn't come along until the supreme court michigan supreme court allows that expansion of the record correct and then and then michigan supreme court declined review right a good thing i mean the system isn't supposed to work that way but the given the content of the michigan court of appeals reasoning i'm having a hard  was satisfied that his counsel's performance was so deficient that that st promise is satisfied we're dealing with the nd problem here whether or not who suffered prejudice and michigan court of appeals said decided that he didn't suffer prejudice because he wouldn't have taken it anyway even if he knew about it the problem with that is that it's pure speculation it's secular thing about what he would have done if he had no we have his affidavit saying if i had known what i was facing i would have pled guilty i would have made a factual basis nd on the day of trial he did try to accept a plea offer not even knowing what he faced so he had if used trying to accept a plea offer on a day of trial not knowing he's going to go to prison for the rest of his life and never get out if he's convicted at trial certainly he would have accepted a plea well before that and well before the deadline because there is such a difference between the certain knowing that you're going to die in prison and the possibility of one day getting out and every part of the criminal justice system here failed him his attorney failed him when he didn't read the amended statute and he didn't tell him what he was facing the prosecutor failed to win they also didn't read the amended statute and had no idea of the penalty the trial court failed him by again not knowing the penalty and once that state was realized fusing to rectify it by granting him a new trial the state appellate courts failed him when they found that he suffered no prejudice however the magistrate really i did not and found that he did suffer prejudice and recognize the fundamental unfairness of what happen unfortunately the district court did not agree and did not adopt that finding when i defend not know the penalty he is facing and does not know what lies ahead he cannot make any kind of informed decision about what to do he had no idea that if he were convicted at trial that he would go to prison for the rest of his life and never get out the thought that whether he was convicted of trial or convicted by a plea he would one day have a possib was a good thing everyone failed but under laughter versus cooper we know that what we have to do is we have to figure out we have to figure out what would have happened had he been properly advised that's the inquiry is not per se rule that when a defendant is missing in the plea negotiation process that was not the holding a glass of versus cooper the st promise you have to ask with the defendant taking the plea agreement having been properly so that is the in that has to be made here it cannot simply say there was deficient performance and therefore really so in looking at that evidence i think the st thing i do want to address is whether to consider this affidavit all i think that trowbridge was prejudiced it's here to determine whether the state courts acted and reasonably in holding that he was in finding that he was not prejudiced and so in order to find that they acted reasonably here not it would be unfair thirty there is a caption that is supreme court michigan supreme court so i believe that it was after he filed his application and i actually have the docket pulled up i can ok so it was never filed with the court of appeals it was filed for the st time with the supreme court with and didn't issue any kind of reasons opinion and it didn't issue sort of an unexplained firmaments a did in the firm the case right it did something analogous to what the supreme court faced in greenberg's this fissure which is the case of a pennsylvania  where the pennsylvania court of appeals this was a case about the change in the log rather than a change in facts but the pennsylvania intermediate appellate court made its decision and then well it was pending in the pennsylvania supreme court the law changed and the and so the argument was that the supreme court got it wrong based on the pennsylvania supreme court got it wrong based on this change of law and the u s supreme court said no the pennsylvania supreme court decided not to decide read it granted the petition or cert whatever it was the application held argument and then dismissed the application as improvidently granted so it and the u s supreme court recognized that that is a decision not to decide that scream versus fisher that's what happened here the michigan supreme court made a decision not to decide so and i know there's an inconsistency between mr trowbridge this reply brief which says you do up the machi the law which is what reimburses fisher says and we also look to it for the facts because we treat those the same in green versus fisher relied on cohen versus pen holster which is about facts versus pinholes relied on lockyer versus on als only have the evidence before which is that he never never offered to plead guilty and there's been sort of misstatements i think accidental which is that he tried to plead guilty on the day of trial he did not try to plead guilty of the  he tried to plead no contest on the trial and later now at the time the trial court's not accepting it because the deadline later the trial court said i also wouldn't have accepted it because there was no basis for a no contest  michigan court rules make clear that a no contest plea requires the consent of the court so there are actually two separate bases for which he could not have tendered no or could not have had a no contest plea and so he would have had to plead guilty there was no indication until he gets to the michigan supreme court files the set that it that he would have ever accepted responsibility that he never stood up in open court and said yes i did do these things that i was accused of which you have to do to plead guilty you have to make it t advice he should have received and i hear my opposing counsel say thirty here is what thirty years was the top of the guidelines but we know from the going through here that his counsel told him you're a repeat sex offender against children you're not going to get parole here we're looking at forty five years if you're lucky that's his mid seventy's right he's not going to be he's going to be eligible for parole right in his you know sixty's i guess early a very slim chance of acquittal is something that that a defendant can make it's to make his decision based on right that's the u s supreme court said yeah he really thought i mean he didn't think he had a good chance of acquittal you know  acquittal right and so that's one thing the other thing is that he was not willing to stand up in court but either way he rejected the deal that would have probably saved him more than twenty years in prison and if he was lucky and probably closer to thirty or more he was probably looking into his natural life in prison even though on paper it was a term of the since he was looking at almost certainly a natural life sentence and he rejected a twenty two dollars and a half year cap in order to take his chances either to roll the dice or because he didn't want to stand up in open court and that would be a done or of either way saying because the evidence shows he gave up an offer that would that was enough time that you're saying that that we know because when it the state court made the right call yeah well i think the state court made the right call i only need to convince you that the state court made a reasonable call right right and i would point this court to smith versus cook which is an opinion by judge larson the judge bush you joined a few months ago in which you know the sort of the factual lead up to it was different this court consider the fact that he between is possible sentence in the twenty seven year offer and he still chose to roll the dice a trial i would ask the court with versus cook and consider the reason for it as far as for the proposition that this is a relevant consideration that a court can take into consideration in looking at all the circumstances especially when it doesn't have any direct evidence it has to just look at what it has in front of it it doesn't have tro testimony in front of it it doesn't have trumpeters affidavit in front of it all tramples what he did which is he rejected a guilty plea a guilty plea offer he rejected the offer that would have saved him at least twenty years in prison he tried to accept  the advantage in doing so and then he submitted his affidavit was it was too late this court shouldn't consider it move because it should give it i mean it's hard to say what this court should do if it considers it because again if you're trying to review the reasonable us of what the it was not pure speculation as the are and are put in as a cause in council put it for the court that i mean speculation is required right as i said at the outset of the argument that the inquiry has to be it's require what would have happened things would have been different so the speculation is part of the job right but to say it's pure speculation is false that the the the speculation if you want to call it that was based on the evidence that the court had before  cannot hold mr trowbridge accountable for making a decision to reject a plea offer when he did not know what he was facing a decision made like that is not informed decision and he can't now be held responsible for the consequences years when you're talking about mandatory life in prison probably is not good enough close enough is not good enough when you're talking about a sentence this severe the harshest sentence michigan can hand out what happened here we appreciate very much the argument about to be given to consider the case carefully miss francie as say that your appointed counsel under the criminal justice sat we very much appreciate your having accepted the