[00:00:01] Speaker 04:
Good morning, Your Honor, and may it please the Court.

[00:00:03] Speaker 04:
Michael Sheppard for the appellant, David Connerly.

[00:00:07] Speaker 04:
I'm hoping to reserve three minutes for rebuttal.

[00:00:10] Speaker 04:
We'll see how that goes.

[00:00:12] Speaker 04:
Three central errors by the district court require reversal.

[00:00:17] Speaker 04:
To reject Mr. Connerly's claim of ineffective assistance in connection with the so-called C plea offer in March,

[00:00:26] Speaker 04:
of 2018, that district court conflated the question of whether counsel provided reasonable advice with the question of whether he implemented his client's reasonable requests.

[00:00:40] Speaker 04:
The government doesn't contest that counsel was required to implement his client's reasonable requests, and there is no question that he failed to do so.

[00:00:52] Speaker 03:
in deciding how to approach the case, to take specific instructions from the defendant?

[00:00:59] Speaker 03:
I thought the defendant gets to make the major decisions, but the strategic implementations are left to counsel.

[00:01:07] Speaker 04:
I think the answer to that is, first of all, the text of the Supreme Court's opinion and this Court's opinion.

[00:01:17] Speaker 04:
as cited in our briefs, that counsel must implement reasonable requests.

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And I think it also turns on this court's, I think it's this court's Sturges versus Goldsmith decision that says, you must be reasonably effective under the circumstances.

[00:01:36] Speaker 03:
The government presents an offer.

[00:01:37] Speaker 03:
Here's a specific offer.

[00:01:39] Speaker 03:
The question is whether to take

[00:01:42] Speaker 03:
the offer or decline the offer.

[00:01:44] Speaker 03:
And counsel has that overall objective and whether or not he didn't do a punch list of things the client wanted may not be ineffective if his overall handling of the issue and the advice he gave was within the range of professional assistance.

[00:02:03] Speaker 04:
Okay, so let's focus on his overall handling of the issue because he's got a client who's telling him

[00:02:09] Speaker 04:
I would like you to do whatever you can do to figure out what my criminal history category is with as much clarity as you can.

[00:02:18] Speaker 04:
That's a reasonable request.

[00:02:20] Speaker 04:
It impacted a reasonable person's decision.

[00:02:23] Speaker 03:
And isn't the answer he gave that it could be three, four, or five?

[00:02:26] Speaker 03:
It ended up the judge at sentencing later agreed it was three.

[00:02:30] Speaker 03:
But he actually gave him an accurate answer, but also advised him of the risk that it might be higher.

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And then he warned him of the risk of landing as a career offender if there was a superseding indictment.

[00:02:42] Speaker 04:
That's all true.

[00:02:43] Speaker 04:
But his client was telling him

[00:02:47] Speaker 04:
I'm really not comfortable making a decision until you can do whatever you can do.

[00:02:56] Speaker 04:
Don't do the impossible.

[00:02:57] Speaker 04:
Do whatever you can do to find out more information, more clarity about my criminal history category.

[00:03:04] Speaker 04:
And there were very easy things that could have been done.

[00:03:07] Speaker 04:
The first thing

[00:03:10] Speaker 04:
to pick up on what you referenced with the sentencing.

[00:03:15] Speaker 04:
The first thing was he didn't even complete his legal research about the quality of the argument he had that

[00:03:23] Speaker 04:
that it should be a criminal history category three instead of four.

[00:03:26] Speaker 04:
He didn't complete that until the sentencing.

[00:03:29] Speaker 04:
He kept telling him, I'm still working on that.

[00:03:32] Speaker 04:
It could have been completed.

[00:03:33] Speaker 04:
There was only one case out there on the subject.

[00:03:36] Speaker 04:
He could have done that and said, I've looked at all the cases, I've completed my research.

[00:03:42] Speaker 04:
I asked probation where they're gonna come out, if he had found out as they ultimately did,

[00:03:51] Speaker 04:
probation comes out of criminal history category four, he could have said that.

[00:03:56] Speaker 04:
There were some very simple things.

[00:03:58] Speaker 03:
How would that have affected the decision making in a way that, you know, undermines, indicates that his failure to do that was deficient and that it was prejudicial?

[00:04:11] Speaker 03:
How does it make a difference whether it's three or four?

[00:04:13] Speaker 04:
Well, let me answer that.

[00:04:15] Speaker 03:
Especially when the plea on the table is a C plea with a fixed range that'll bind the judge.

[00:04:20] Speaker 03:
In two different ways.

[00:04:21] Speaker 04:
One, there's no question that Connerly says it mattered to him.

[00:04:26] Speaker 04:
He makes that very clear in his declaration.

[00:04:28] Speaker 04:
But second, as a practical matter, which is, I think, what the Court is getting to, I think anybody who's pleading guilty is saying, OK, what's the result of my guilty plea going to be?

[00:04:41] Speaker 04:
And then what are my chances at trial?

[00:04:44] Speaker 04:
And then if I lose a trial, what's the result at trial going to be?

[00:04:50] Speaker 04:
And in order to appreciate what the result at trial is going to be, you want as much clarity as you can about your criminal history category, because that's going to affect

[00:05:03] Speaker 04:
what the result is going to be if you lose a trial.

[00:05:06] Speaker 02:
But if we set a rule that defensive attorneys are going to be ineffective if they don't give a precise

[00:05:16] Speaker 02:
you know, calculation of the criminal history points, especially given all of the uncertainty sometimes that exists with regards to calculating that.

[00:05:29] Speaker 02:
I mean, isn't that a bad rule to establish, or as soon as there's a mistake made by a defense attorney on those things, then, oh, ineffective, and we're gonna have to send this back.

[00:05:40] Speaker 04:
I think what's, I appreciate the point, but I think what Strickland tells us is that

[00:05:46] Speaker 04:
This depends, this determination depends on the facts of every case.

[00:05:52] Speaker 04:
It's not a rule-based thing.

[00:05:55] Speaker 04:
It depends on the facts of this case.

[00:05:57] Speaker 04:
And the facts of this case are, counsel presents a plea offer, he recommends the plea offer.

[00:06:05] Speaker 04:
The defendant says,

[00:06:08] Speaker 04:
you know, I'm just not comfortable until you do these reasonable things that could easily be done.

[00:06:17] Speaker 04:
Could you do those for me?

[00:06:19] Speaker 01:
You say just not comfortable.

[00:06:21] Speaker 01:
But if we are looking specifically at this case, you know, to use a really extreme example, his counsel said it's going to be somewhere between here and here, worst case scenario, best case scenario.

[00:06:32] Speaker 01:
And it turned out that it was

[00:06:33] Speaker 01:
better than because it turned out to be category three.

[00:06:36] Speaker 01:
So if you said you could get life in prison to one month, and if I know that and I say, you know what, I'm not going to plead, even though I think I might be facing life in prison, then it turns out that it's more favorable.

[00:06:50] Speaker 01:
Why would he have chose to plea when he thought he might be facing

[00:06:56] Speaker 01:
this more extreme sentence, if he had known that he actually was facing a less extreme.

[00:07:02] Speaker 01:
I'm trying to figure out what, if we actually do look at the specifics of this case, why that doesn't hurt you.

[00:07:08] Speaker 04:
Yeah, I think the way you have to look at it, or the way I ask you to look at it, is

[00:07:15] Speaker 04:
what would have helped him make a decision, not which decision he was ultimately going to make.

[00:07:22] Speaker 01:
And I think you're doing a good job of arguing that, but you're basically saying just more information.

[00:07:26] Speaker 01:
It's another way of saying what I think you're saying.

[00:07:28] Speaker 01:
More information is always helpful.

[00:07:30] Speaker 01:
You can make a decision.

[00:07:31] Speaker 01:
But if you actually look at this, but that's some tension with that.

[00:07:34] Speaker 01:
If you look at the specifics of what he would have had for information and if he'd known that

[00:07:39] Speaker 01:
what was on the table was something was actually more favorable.

[00:07:42] Speaker 01:
Why would any rational person plead thinking that they could go to trial and get something better?

[00:07:50] Speaker 04:
A, because he would have gotten the answers he requested, but B, because the answers, in fact, were going to be mixed.

[00:07:59] Speaker 04:
That is, probation was going to say criminal history category four.

[00:08:05] Speaker 04:
There wasn't any way to have the judge decide what the sentence was going to be.

[00:08:11] Speaker 04:
in March when he was deciding on his plea offer.

[00:08:14] Speaker 04:
So the question is, what information?

[00:08:17] Speaker 03:
In a way, yes, there was, because it was a fixed range.

[00:08:19] Speaker 03:
It was, what, 57 to 87?

[00:08:21] Speaker 03:
So he has a guarantee you're gonna be, if the judge accepts this plea, you will be within that range.

[00:08:29] Speaker 03:
And I think what Judge Van Dyke is getting at is, if there's an ambiguity as to whether he's in four versus three, and in fact, he really was in three,

[00:08:41] Speaker 03:
Normally, the incentive to go to trial is to avoid the harsher sentence, but you seem to be saying that the screw-up was that he didn't let me know the sentence.

[00:08:51] Speaker 03:
was going to be more lenient, but that would make you more likely to turn down the deal, which is what he did, so that's why it's hard to see that there's prejudice here.

[00:08:59] Speaker 04:
In some ways, but the question is, the screw-up, and to use the court's phrase, the screw-up is not answering his question, not doing, implementing the reasonable requests, because you've got to,

[00:09:14] Speaker 04:
as Sturgis says, reasonably effective under the circumstances.

[00:09:18] Speaker 04:
So what are these circumstances?

[00:09:20] Speaker 04:
The circumstances are, for whatever reason, the client is stuck.

[00:09:24] Speaker 04:
And he's making clear that he's stuck.

[00:09:27] Speaker 01:
That sounds like you're kind of getting rid of the prejudice.

[00:09:29] Speaker 01:
Because it isn't just information, but you also asked whether you think somebody was prejudiced, and we're trying to see where the prejudice is here.

[00:09:37] Speaker 04:
The prejudice is he didn't take the C plea because he was stuck and counsel wasn't implementing his reasonable requests.

[00:09:47] Speaker 04:
Had counsel implemented his reasonable requests, he would have been unstuck.

[00:09:53] Speaker 01:
Council implemented his reasonable request and said, you know what?

[00:09:56] Speaker 01:
I figured out that you actually will be facing a lower range, a three range.

[00:10:02] Speaker 01:
Then he had been like, well, yeah, I'm definitely going to go to trial then.

[00:10:05] Speaker 04:
He did not say that at the time.

[00:10:07] Speaker 04:
That was something that he got to by the time of sentencing.

[00:10:13] Speaker 04:
And by then, it was too late.

[00:10:15] Speaker 04:
And that's my point.

[00:10:16] Speaker 04:
Had he done that work when Mr. Connelly was requesting that he do that work,

[00:10:22] Speaker 04:
Mr. Connolly would have been unstuck and could have taken the C plea.

[00:10:26] Speaker 04:
He didn't get around to it until the sentencing, even though his client was asking him repeatedly to do so.

[00:10:32] Speaker 03:
OK.

[00:10:32] Speaker 03:
We've taken over your time with a lot of questions, but I'll give you your three minutes of requested time.

[00:10:37] Speaker 04:
I appreciate that, Your Honor.

[00:10:37] Speaker 03:
Thank you.

[00:10:38] Speaker 03:
We're here now from Ms.

[00:10:40] Speaker 03:
Bissett.

[00:10:44] Speaker 00:
Good morning, Your Honors.

[00:10:45] Speaker 00:
May it please the Court?

[00:10:46] Speaker 00:
My name is Maureen Bissett, and I represent the United States in this matter.

[00:10:53] Speaker 00:
Attorney Dressler provided effective assistance of counsel in advising Mr. Connolly to accept the C plea.

[00:11:01] Speaker 00:
He had provided him with the approximate guideline range, the approximate criminal history category stating right before that it was very likely a criminal history category four and gave him sufficient.

[00:11:16] Speaker 03:
He said it also might be three.

[00:11:18] Speaker 00:
Correct.

[00:11:19] Speaker 00:
Right before, Your Honor, on March 10th, he told them that it was very likely a criminal history category 4, and that's at 3ER189, paragraph 18D.

[00:11:33] Speaker 00:
And the same right before we got to the pleading open, he had confirmed right before, and it was likely going to be a 4 as well.

[00:11:42] Speaker 00:
And when he said that, Your Honor, if he had gone ahead at that point, if we're going to talk about the specifics of this case as my colleague did, if he had gone ahead at that point and done what his client asked him to do and asked for a pre-plea report, probation would have come back like it ultimately did with a criminal history category four.

[00:12:01] Speaker 00:
And if we take that fact and look at what was happening at the time, the AUSA had provided the C-plea offer without it having gone through our office through the formal

[00:12:11] Speaker 00:
process as is typical.

[00:12:13] Speaker 00:
If he had gotten back that probation was saying it's a criminal history category four, the C plea would have been blown up.

[00:12:19] Speaker 00:
Our office wouldn't have gone ahead with a range which the C plea did capturing the low end of the three.

[00:12:24] Speaker 02:
They offered a C plea without going through the normal process?

[00:12:28] Speaker 02:
That typically doesn't happen.

[00:12:29] Speaker 00:
What typical your honor is we do ask if the opposing side is interested in a plea and when they say yes, we then put it through and that we give that language in the email, which was done here and which it was told, here's what we're proposing.

[00:12:42] Speaker 00:
If your client is interested, we'll then put it through to the, the supervisors who will approve it or not.

[00:12:47] Speaker 00:
So here, if we had gotten back probations, criminal history, category four, our office wouldn't have gone ahead with a plea that bound

[00:12:55] Speaker 00:
the government to offer the low so let me be clear about something so it wasn't it it was an offer but it was not that was subject to approval by the by the office still correct and is that the normal practice yes it is your honor I mean we don't want to waste our supervisors time approving things that haven't been accepted by this defense we reach out and say are you interested in this plea if they say yes

[00:13:16] Speaker 00:
we put it through.

[00:13:17] Speaker 03:
So here, the particular detail, if the strategy of Mr. ... Is that clear from the record that this was the offer, the C offer made in March was subject to further review and approval before it could actually be concluded?

[00:13:31] Speaker 00:
I believe it is, Your Honor, from the emails from the prosecutor.

[00:13:35] Speaker 00:
to the defense attorney.

[00:13:38] Speaker 00:
And so here the strategy of Mr. Dressler by not proceeding with that, he had captured a plea that offered the low end of a category, criminal history category three, and that would have been lost if he had gone ahead and asked.

[00:13:52] Speaker 01:
The point is that the lack of clarity for everybody at this point was actually benefiting him because he was getting in it.

[00:13:57] Speaker 01:
If we'd have nailed that down, you'd have given him a... What about the... That's correct.

[00:14:03] Speaker 01:
And from the other side, do you understand my question about this prejudice issue?

[00:14:08] Speaker 01:
I don't understand why, if suddenly he knew that he was facing a level 3, so therefore a lower end range, why that would have incentivized him to take the plea when he wasn't taking it, thinking that it might be at a broader range with a worse high end.

[00:14:25] Speaker 00:
Correct.

[00:14:26] Speaker 00:
and against a record that is replete with Mr. Connolly saying he did not want to take any of the government's pleas after the March meetings before the C plea expired.

[00:14:36] Speaker 00:
Mr. Connolly sat down, examined the plea, and came back and said, I don't want any of the government's pleas, which he had said from the beginning.

[00:14:44] Speaker 01:
But I take his argument to be that, yeah, but just having clarity, just having things nailed down sort of would

[00:14:52] Speaker 01:
would have forced the issue for my client and caused him to make that decision.

[00:14:56] Speaker 01:
Are there any cases that talk about that?

[00:15:00] Speaker 01:
Because it seems somewhat, they do have to show prejudice.

[00:15:03] Speaker 01:
It seems somewhat at odds with the requirement to show prejudice to say, well, maybe they've been better off, or maybe if we'd have nailed it down, he would have figured out that it was a level three.

[00:15:17] Speaker 01:
he would have seen that his risk was lower, but that clarity would have actually helped make the decision, too.

[00:15:22] Speaker 00:
And we can never be clear, Your Honor, until we're before the judge.

[00:15:26] Speaker 00:
Even the judge will say that at the plea agreement.

[00:15:28] Speaker 00:
The judge isn't going to be able to know until he gets all the information back from probation, reviews that report, and then makes decisions.

[00:15:34] Speaker 00:
For example, here, no matter how much research Mr. Dressler had done on the issue of whether or not the state marijuana conviction being expunged did not count or did count

[00:15:45] Speaker 00:
for purposes of a federal criminal history category.

[00:15:48] Speaker 00:
No matter how much research was done at whatever point we look at before the March C plea had expired, it was a novel issue.

[00:15:56] Speaker 00:
There was very little case law on it, and what Mr. Dressler did was compare it to Proposition 47.

[00:16:02] Speaker 01:
Is there a way to get that before the judge to get a decision on that from the judge before

[00:16:08] Speaker 00:
It'd be inappropriate for the judge because the judge would then be engaging in plea negotiations, which at one point on the record, Judge White says he wasn't going to go any further in discussions about whether or not the superseding indictment was coming and whether or not Mr. Connolly was going to plead guilty because district court judges cannot engage in plea discussions.

[00:16:26] Speaker 00:
It's a violation of rule 11.

[00:16:28] Speaker 00:
So here we have

[00:16:30] Speaker 00:
Something that could not be known until after the defendant pled guilty, probation did the report and gave it to the district judge.

[00:16:37] Speaker 00:
And the district judge then made a decision.

[00:16:39] Speaker 00:
And here, one of the points that my colleague brought up was that the government conceded at sentencing that the marijuana expungement should not count.

[00:16:49] Speaker 00:
That's not accurate.

[00:16:50] Speaker 00:
It was in the sentencing memo from the United States that it should count.

[00:16:54] Speaker 00:
We were at criminal history category four, like probation.

[00:16:58] Speaker 00:
recommending a sentence of 120 months.

[00:17:00] Speaker 00:
It was only after the judge went for five transcript pages over this novel issue that the prosecutor, who was not the prosecutor in the underlying case, someone standing in, said sort of diplomatically, well, okay, we can go forward that way.

[00:17:16] Speaker 00:
It wasn't that the government conceded this before that point.

[00:17:19] Speaker 00:
In fact, the government believed that that marijuana expungement should count because

[00:17:23] Speaker 00:
That's what typically happens in case life.

[00:17:25] Speaker 00:
There's something in a state court proceeding.

[00:17:28] Speaker 02:
But you want, you said that the government agreed to it just because they wanted to be nice?

[00:17:33] Speaker 00:
Well, I'm not saying they agreed to it to be nice.

[00:17:34] Speaker 02:
No, the government agreed to it.

[00:17:35] Speaker 02:
The government agreed to it.

[00:17:36] Speaker 02:
That's what they said.

[00:17:37] Speaker 02:
I mean, unless they were not being honest with the court.

[00:17:40] Speaker 00:
I say here under, they were reading the tea leaves.

[00:17:41] Speaker 00:
The judge went on for five pages.

[00:17:44] Speaker 00:
Up to that point, it was in our sentencing memorandum requesting that the categorization be criminal history category four.

[00:17:51] Speaker 00:
And after the judge went on for five pages, the prosecutor in court said, well, we could proceed that way.

[00:17:57] Speaker 00:
It wasn't that we conceded ahead of time saying that this is something that's clear by case law.

[00:18:02] Speaker 00:
There was no case law and the prosecutor pointed that out.

[00:18:08] Speaker 00:
there was effective representation on the C-Play.

[00:18:11] Speaker 00:
Everything that an attorney, a reasonable attorney, could do to provide someone with what their estimated range was, whether or not, you know, certain enhancement applied was provided.

[00:18:25] Speaker 00:
And I'd like to move to the open play unless the court has questions for me on the C-Play.

[00:18:32] Speaker 00:
Attorney Dressler also provided effective assistance of counsel at pleading open.

[00:18:36] Speaker 00:
And I point the court to

[00:18:38] Speaker 00:
June 5th, 2018.

[00:18:41] Speaker 00:
I understand right now what my colleague is arguing is that Mr. Connerly did not know that on the day his plea was set, the government was going to be prepared to supersede, and the record does not support that, Your Honors.

[00:18:55] Speaker 00:
On June 5th, 2018,

[00:18:58] Speaker 00:
which is pointed out in Dressler's Declaration 3, ER 191, paragraph 25B.

[00:19:05] Speaker 00:
And this is 14 days before the open plea.

[00:19:10] Speaker 00:
The prosecutor stated on the record that he was prepared to seek a superseding indictment.

[00:19:16] Speaker 00:
The prosecutor then, on the day of the plea, June 19th, 2018, stated that the government had postponed the superseding indictment multiple times

[00:19:26] Speaker 00:
to allow Mr. Connolly to plead to the indictment.

[00:19:31] Speaker 00:
And also on June 14, 2018, five days before the change of plea, Mr. Connolly signed a handwritten application stating he didn't want to get a superseding indictment and possibly more severe penalty.

[00:19:45] Speaker 00:
That's why he was pleading guilty.

[00:19:47] Speaker 00:
And that's at the supplemental excerpt of record 36.

[00:19:52] Speaker 00:
He made the same statement when the district court had meticulous questioning to make sure this was an intelligent and voluntarily plea.

[00:20:00] Speaker 00:
He stated he was pleading guilty to the same reason when the court asked him was it because he had weighed going to trial on a more serious set of penalties and more severe penalty versus

[00:20:10] Speaker 00:
pleading open to the one count in the indictment.

[00:20:12] Speaker 00:
Mr. Connelly said yes, that's why he was pleading guilty.

[00:20:16] Speaker 00:
There was no confusion the superseding indictment was coming.

[00:20:19] Speaker 00:
He had been warned of it from December 2017 when his first attorney was representing him in a letter that was provided to him saying, the government says it's gonna supersede and the government does this all the time when getting ready for trial.

[00:20:32] Speaker 00:
If they aren't gonna have a case resolved, we supersede and add the appropriate charges and proceed.

[00:20:41] Speaker 00:
The excerpt of record, Your Honors, for the June 19, 2018 prosecution statement that the government had postponed the supplement, the superseding indictment multiple times is 3ER419.

[00:20:53] Speaker 00:
I see that I'm out of time, Your Honor, unless there's further questions.

[00:21:03] Speaker 03:
All right, thank you, Counsel.

[00:21:04] Speaker 03:
Thank you.

[00:21:05] Speaker 03:
All right, we'll hear from

[00:21:10] Speaker 04:
Thank you for the consideration, Your Honor.

[00:21:12] Speaker 04:
I'll try to get quickly through a couple of points that were raised.

[00:21:15] Speaker 04:
First of all, it is true that it is in the record that the plea agreement had to be approved.

[00:21:22] Speaker 04:
But I do not believe it is true that it was in the record that it would have been refused because it was outside the guideline range, which is the critical question in counsel's argument.

[00:21:36] Speaker 04:
I don't think that's in the record.

[00:21:38] Speaker 04:
Second, there were arguments and questions that assumed that had counsel done what Mr. Connerly was requesting at the time, he would have known he was a level three.

[00:21:54] Speaker 04:
I don't think that's what the evidence reflects.

[00:21:57] Speaker 04:
The evidence reflects probation would have said four.

[00:22:02] Speaker 04:
as Ms.

[00:22:02] Speaker 04:
Bassett has said, the government would have said for.

[00:22:06] Speaker 04:
So I think that answers the questions that the court was asking about wouldn't, if he had done his homework,

[00:22:15] Speaker 01:
wouldn't he therefore have a really because then you're saying if you if somebody has you know ambiguity as far as from best best case to worst case scenario if you did your homework you've discovered well it looks like it's closer to worst case scenario then you i don't know where that changes my calculus as to whether to plead because typically you assume that somebody's pleading based on their worst exposure so all you be doing is validating that they're

[00:22:42] Speaker 01:
that, yeah, it looks like I'll get the high range.

[00:22:44] Speaker 01:
So I know it feels like a catch-22 a little bit.

[00:22:47] Speaker 01:
If you got the low range, why would you plead?

[00:22:49] Speaker 01:
But if you got the high range, we're just trying to figure out why that information would change a rational person's calculus.

[00:22:57] Speaker 04:
It's all a weighing process.

[00:22:59] Speaker 04:
The calculus in this case was, I want as much information as I can.

[00:23:04] Speaker 04:
That would have satisfied his request to get the information he wanted.

[00:23:08] Speaker 04:
I expect that he would have then gone with his counsel's advice, which was take the C plea offer.

[00:23:15] Speaker 04:
There was quite a bit of comment by Ms.

[00:23:19] Speaker 04:
Bassett that Mr. Connerly wanted to go to trial.

[00:23:23] Speaker 04:
That has an interesting impact on the

[00:23:28] Speaker 04:
taking of the open plea, but I don't think it fairly reflects the record as of the time of the C plea, because as of the time of the C plea, as we cited extensively in our brief, there were repeated occasions when Connerly was saying he wanted more clarity on his criminal history category, and there were repeated occasions when in counsel's declaration,

[00:23:52] Speaker 04:
he is saying at great length, I was trying to explain this to him about this criminal history category, trying to explain this to him, but he never did the homework that he needed to do.

[00:24:04] Speaker 04:
As to the actual open plea, it is a disputed fact as to whether Mr. Connerly knew that on the day of the open plea,

[00:24:18] Speaker 04:
he needed to plead guilty or superseding charges would be filed.

[00:24:23] Speaker 04:
And the prejudice that resulted from that was that there is nothing in the record that suggests that they ever discussed, do I have a defense to this extra charge?

[00:24:36] Speaker 04:
which, of course, is necessary to effective assistance on whether to take the open plea or not.

[00:24:43] Speaker 04:
And I appreciate the extra time the court has given me.

[00:24:45] Speaker 04:
I see I've used it up.

[00:24:47] Speaker 04:
So thank you very much.

[00:24:48] Speaker 03:
Thank you.

[00:24:48] Speaker 03:
I thank counsel for both sides for your helpful arguments in this case.

[00:24:51] Speaker 03:
And the case just argued to be submitted.

[00:24:54] Speaker 03:
And we will stand in recess.

[00:24:56] Speaker 04:
All rise.