i'm going to focus on what i believe to be the heart of the matter on appeal here which relates to the first assignment of air we raised in our opening for which is whether or not kelly tanner was constitutionally deprived of his right to a direct appeal from his conviction more throughout the course of the case and whether or not mr tanner should appeal that's really what the focus point of this case is at this particular time there are affidavits in the record mr could there's no dispute here as to whether or not mr did consult with tanner because kaczynski filed affidavit saying no i did not i did not advise them is the right to appeal i did not consult with them regarding well with any of appealing that's that's a good question you're on a very good question before i answer that really fatha just want to segue into the whether or not there are meritorious grounds to appeal is part of the calculus of decision as to whether or not there's a duty consult but it's not the full ground and for take the supreme court long answer my question i am going to your i'm sorry there are two there are two primary grounds that i could see that mr joffe kinski should have consulted mr tanner about regarding appealing the first that i see is in this case there was a plea agreement mr turner pled guilty to all the counts and the information pled guilty to murder in the first degree the only a group the only benefit you received from pleading benefit just so that i understand because i'm he said he didn't want to put the family through it but he played as charged but the court could have given him sentences that would have allowed parole right yes wrong as opposed to but in fact he got sentences that were he got to life without possibility of person parole sentences crack so that was what that was his bargaining area and he knew that we're not yes so if he had  the record one twenty four defense counsel talks about how there are errors in the pre sentence report specifically tanner specifically denies that he engaged in this pattern of domestic violence and battery on the victim who happen to be his wife murder case which doubles the sentence under nevada law any mechanism or physical physical item at all that actually kill somebody becomes a deadly weapon there is an argument at least something that you want to talk to your client penalty isn't cruel and unusual and that but if you only have one life to give what is the practical you know the practical i think fact you have to show that it's not prevalent right are your terms that's life without converted into life with the possibility of parole so getting rid of one life with the possibility for all could conceivably have benefit in the future but this reminds me of a point i want to make here which is all but if you could get consult give and take that the court is having with me this is the kind of conversation you would have with your client and force or take it does not say there's a duty consult only if there meritorious issues just that there are reasonable grounds to believe that your client would want to talk about an appeal i with any case for your client has been sentenced to life without the possibility of parole you would want to go talk to him about the right to appeal well how long was that the first time that he wanted to talk about it when he tried to file an appeal he two years or something was about two years your honor and what he alleges is that cut against him which he alleges in his affidavit is that's the first time he found out about his right to appeal that you talked to a prison jailhouse legal assistant who told him oh mr tanner regarding direct appeal for several reasons the first being that mr tanner entered a guilty plea the second reason being is that when mr tanner entered his guilty plea he was fully apprised of the process penalties  survivors through the emotional aspects of the trial i would also direct this court's attention to the sentencing the record reflects that mr tanner stated in the court in the pre sentence investigation that he wished that he could get a death sentence he said he was ready to pay for his crimes and that the court should impose any sentence that it felt was fair that appears an excerpt of record one thirty one mr tanner did express a certain degree of the morse and  my plea therefore mr tanner was aware of his right to appeal that being the case under the circumstances of this case roe v flores ortega indicating that the totality of circumstances pas leave that mr tanner would have wanted to appeal the second prong of roe requires the petitioner to show that it is that there is a reasonable pop probability that waived by the fact that there weren't any objections at the time in particular examination of the sentencing transcript shows that there was discussion throughout the transcript throughout the sentencing proceeding with respect to aspects of the sentencing transcript muted mr captain skinner mr tanner made any comments or any effort to correct anything at that particular point in time travel the space that that  it is a constitutional sentence the second point is he made no challenge to the constitution at well i guess part of it is that he knew that he faced that possibility and he accepted that possibility when he pled guilty the other aspect of it is that at sentencing when the judge afforded him his right of allocution i asked him if he had anything to say and he said judge sentenced me to whatever you think is a fair and the judge went through great lengths are explaining why he thought the life without the possibility of sentence was fair under those circumstances no duty arose from mr calfskin ski to advise faced that being the case it's simply cannot be set it may not necessarily be a frivolous issue i think it's as close to being  and so we have to look at the law as it existed at that time in the absence of an absolute doubt in the absence of an absolute duty to advise the defendant of the right to appeal just because there might be non frivolous issues i don't believe there was that forty existed at that time i would direct this court's attention also to that if roe versus flores ortega is going to be construed as a petition or a he pled guilty the fact that there are no i'm frivolous issues requires and we're talking about nine hundred ninety four now if it's going to be construed in that fashion that because there's he pled guilty he wasn't advised of his right to appeal if the court accept that as the basis in light of the excerpt of the record here dunk if you i'm going to show reversal is the only thing tegan says what you have to do it's a totality of the circumstances you know if you're going to extract or extinguish from flora's or roe versus floors or taking the requirement that you then there's there's there's a significant problem there my point again is john's if john's versus barmes says that a pelican i'm sorry you want me to continue on i see that i'm and if a power counsels not it doesn't necessarily convert to a requirement that counsel who has to determine whether or not there's a duty to advise or consult with his client it doesn't convert that just simply because there's the existence there maybe the existence of non frivolous issues he has a duty thank you for your time  as the heart of the issue in this case is whether or not what triggers the duty to consult whether or not there's a person a rule that was consult and i also know that the circuit authority is strongly against the state of circuit authority excuse me there's a case louis b johnson third circuit fraser versus south carolina for circuit which talks about whether or not force or take is a new rule under t again definitely hold that it is not those cases or say in the reply brief and i would ask the court to review those cases if there's any question about that really once again we get to the substantive issue here issue becomes was there a duty to consult and the duty consult is not just predicated upon the that a reasonable counsel would think his client me want to appeal he's facing life in prison without parole and that it is not only was that the clear law of them that at that time but it's the way any reasonable defense counsel would comport himself to not consult with your client regarding whether or not he's going to appeal when he's facing spending the rest of his natural life in prison is so much shocking appalling act well you can even over