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2020-12-03 16:04:45.08761+00

http://www.in.gov/judiciary/opinions/pdf/12032001jsk.pdf

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 03 2020, 8:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Robert R. Faulkner Max E. Fiester Evansville, Indiana Terrell, Baugh, Salmon & Born, LLP Evansville, Indiana IN THE COURT OF APPEALS OF INDIANA Matthew P. Apodaca, December 3, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-SC-505 v. Appeal from the Warrick Superior Court ERA First Advantage Realty, The Honorable Inc., Benjamin R. Aylsworth, Magistrate Appellee-Plaintiff. Trial Court Cause No. 87D02-1907-SC-1365 Kirsch, Judge. [1] Matthew P. Apodaca (“Apodaca”) appeals the trial court’s ruling that Apodaca owes a real estate sale commission to ERA First Advantage Realty, Inc. (“ERA Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 1 of 8  Realty”) for a purchase of residential real estate that Apodaca negotiated and closed on his own. On appeal, Apodaca raises three issues, but we reach only one of those issues, which we restate as follows: whether the trial court erred in ruling that Apodaca was required to pay a commission to ERA Realty and its agent because ERA Realty and its agent failed to fulfill conditions precedent under the contract. [2] We reverse and remand. Facts and Procedural History [3] In early 2019, Apodaca lived in California, and his job as a field engineer for Siemens Corporation involved significant travel. Tr. Vol. 2 at 25. He searched the internet for real estate for investment purposes, but once he learned that housing in Indiana was much cheaper than housing in California, he began to look for homes in Warrick County as a potential home for him and his fiancée so he could travel less, and he and his fiancé could settle down and start a family. Id. at 26-27. At some point “before March” of 2019, Apodaca discovered a residence in Elberfeld, Indiana (“the Elberfeld residence”) that was listed as “for sale by owner property.” Id. at 27. Apodaca contacted the owner of the Elberfeld residence. Id. At this point, Apodaca had not reached out to any southwestern Indiana realtors about the Elberfeld residence. Id. [4] On March 6 or 7, 2019, Apodaca contacted Michael Melton (“Melton”), a real estate agent for ERA Realty. Id. at 6. Beginning on March 7, 2019, Apodaca began sending text messages to Melton about properties that Apodaca wanted Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 2 of 8  to view. Ex. Vol. at 3-6. In none of his communications with Melton did Apodaca ask Melton about the Elberfeld residence. Tr. Vol. 2 at 19; Ex. Vol. 3 at 3-6. At some point before March 16, 2019, Apodaca contacted the owner of the Elberfeld residence, and the owner agreed that Apodaca could come view the residence on March 16, 2019, at 3:00 p.m. Tr. Vol. 2 at 28. [5] Apodaca and Melton met for the first time on the morning of March 16, 2019, so they could view several properties in the area later that day. Id. at 10. Melton presented Apodaca with a contract. Id. at 11, 20, 22. Several hours after Apodaca and Melton started looking at properties, Apodaca told Melton for the first time that he had arranged to view the Elberfeld residence on his own. Id. at 21. Apodaca and his fiancée viewed that property on their own at 3:00 p.m. the same day. Id. at 21, 28, 30. [6] At some point on March 16, 2019, Apodaca signed a contract with ERA Realty. Id. at 11. In pertinent parts, the contract, designated as a “Loyalty Agreement – Buyer’s Exclusive Agency Contract”, provided as follows: This Contract is entered into and shall commence on 3/16/19 by [ERA Realty] and [Apodaca] . . . . [Apodaca] employs [ERA Realty] for the purpose of exclusively assisting [Apodaca] to locate property described below or other property acceptable to [Apodaca], and to negotiate terms and conditions acceptable to [Apodaca] for purchase of property. .... C. [ERA REALTY’S] COMPENSATION: Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 3 of 8  .... 2 . Commission: In consideration for the services to be performed by [ERA Realty], [Apodaca] also agrees to pay [ERA Realty] a commission of $ Paid by Seller or Paid by Seller % of the total purchase price; however, the total commission paid to [ERA Realty] shall not be less than $ Paid by Seller. . . . [ERA Realty] shall use [ERA Realty’s] best effort to cause the seller or the seller’s agent to satisfy [Apodaca’s] obligation to [ERA Realty]. The commission shall be due, earned and promptly paid if: a. [Apodaca or any other person acting for [Apodaca] or on [Apodaca’s] behalf, acquires any real property or interest as described herein during the term of this Contract through the services of [ERA Realty] or otherwise. .... F. FURTHER CONDITIONS: [Apodaca] will compensate [ERA Realty] 3% on the purchase price of a for sale by owner if the seller will not pay [Apodaca’s] agent commission. [Apodaca] will call [Melton] prior to scheduling appointments with for sale by owners and let [Melton] schedule the appointments. Appellant’s App. Vol. 2 at 18-19 (emphasis added). [7] Apodaca negotiated the terms of the purchase of the Elberfeld residence on his own and closed the sale himself. Tr. Vol. 2 at 30. Melton had no role in the sale. Id. at 21. At some point before May 20, 2019, Apodaca purchased the Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 4 of 8  Elberfeld residence for $450.000. Id. at 15-16, 21, 30; Appellant’s App. Vol. 2 at 17; Ex. Vol. 3 at 6. Melton did not receive a commission from Apodaca, which under the terms of the contract would have been $13,500.00. Tr. Vol. 2 at 16-17. There was no evidence that Melton, or anyone else on behalf of ERA Realty, ever attempted to collect any commission from the seller of the Elberfeld residence or that the seller refused to pay the commission. [8] On July 17, 2019, ERA Realty sued Apodaca by filing a “Statement of Claim.” Appellant’s App. Vol. 2 at 10. Even though ERA Realty alleged damages for lost commissions of $13,500.00, it agreed to the jurisdictional limit of $6,000.00 by filing the claim in the Small Claims Division of Warrick Superior Court. Id. On January 30, 2020, the trial court conducted a hearing on ERA Realty’s claim. Tr. Vol. 2 at 2. On February 3, 2020, the trial court entered judgment against Apodaca, finding and concluding as follows: The Court FINDS that the contract executed by . . . [Melton] and [Apodaca] on the morning of March 16, 2019 is valid and enforceable. [Melton] had performed work in preparation prior to that date for [Apodaca’s] benefit and [Apodaca] testified about thoughtful discussion and consideration with his spouse prior to ultimately deciding to enter into the binding contractual agreement and without being subject to duress. As a result of the foregoing reasons, the Court ORDERS that the Plaintiff shall possess a Judgment against [Apodaca] in the full amount being requested, $6,000.00, plus court costs. Appellant’s App. Vol. 2 at 8. Apodaca now appeals. Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 5 of 8  Discussion and Decision [9] Apodaca argues that the trial court erred in finding that he was liable under the contract to pay a commission to Melton because he maintains that Melton was entitled to a commission under the contract only if Melton fulfilled conditions precedent in the contract. In addressing Apodaca’s claim, we will assume without deciding that Apodaca would owe Melton the commission if Melton fulfilled the conditions precedent in the contract. [10] When a trial court enters findings of fact and conclusions of law, findings control only as to the issues they cover, and a general judgment standard controls as to issues upon which there were no findings. Jernas v. Gumz, 53 N.E.3d 434 , 443 (Ind. Ct. App. 2016), trans. denied. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. We review facts from a bench trial under the clearly erroneous standard and thus defer to the trial court’s opportunity to assess witness credibility. Branham v. Varble, 952 N.E.2d 744 , 746 (Ind. 2011). This deference is “particularly important in small claims actions, where trials are informal, ‘with the sole objective of dispensing speedy justice’ between parties according to the rules of substantive law.” Id. (quoting City of Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115 , 116 (Ind. 1995)). “Interpretation of a contract presents a question of law.” Jernas, 53 N.E.3d at 443. “We review questions of law de novo and owe no deference to the trial court’s legal conclusions.” Id. Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 6 of 8 [11] In arguing the contract required Melton to fulfill conditions precedent before being entitled to a commission, Apodaca points to section C2 and section F of the contract. In pertinent part, section C2 provides: Commission: In consideration for the services to be performed by [ERA Realty], [Apodaca] also agrees to pay [ERA Realty] a commission of $ Paid by Seller or Paid by Seller % of the total purchase price; however, the total commission paid to [ERA Realty] shall not be less than $ Paid by Seller. . . . [ERA Realty] shall use [ERA Realty’s] best effort to cause the seller or the seller’s agent to satisfy [Apodaca’s] obligation to [ERA Realty]. Appellant’s App. Vol. 2 at 18 (emphasis added). Section F provides: [Apodaca] will compensate ERA Realty 3% on the purchase price of a for sale by owner if the seller will not pay [Apodaca’s] agent commission. [Apodaca] will call [Melton] prior to scheduling appointments with for sale by owners and let [Melton] schedule the appointments. Id. at 19 (emphasis added). [12] Apodaca contends that there was no evidence before the trial court that Melton made any effort to cause the seller to pay any obligation for a commission that Apodaca may have owed Melton. Apodaca also claims there is no evidence that the seller refused to pay the commission. Thus, he claims the trial court erred as a matter of law in ruling that Apodaca was required to pay a commission to Melton. Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 7 of 8 [13] We agree with Apodaca. “Under contract law, a condition precedent is a condition that must be performed before the agreement of the parties becomes a binding contract or that must be fulfilled before the duty to perform a specific obligation arises.” Ind. State Highway Comm’n v. Curtis, 704 N.E.2d 1015 , 1018 (Ind. 1998). “As a general rule, an express condition must be fulfilled or no liability can arise on the promise that the condition qualifies.” Id. Here, the contract required Melton to make “best effort to cause the Seller . . . to satisfy [Apodaca’s] obligation to [Melton].” Appellant’s App. Vol. 2 at 18. Under the contract, Apodaca was not liable for the commission unless the seller “[would] not pay the . . . commission.” Id. at 19. There is no evidence that Melton or any other person on behalf of ERA Realty made such efforts or that the seller refused to pay the commission. Therefore, the evidence is undisputed that Melton and ERA Realty failed to fulfill conditions precedent to collection of the commission. Thus, the trial court erred as a matter of law in finding that Apodaca was required to pay the commission to Melton for Apodaca’s purchase of the Elberfeld residence. Accordingly, we reverse the trial court and direct it on remand to enter judgment for Apodaca on ERA Realty’s Statement of Claim. [14] Reversed and remanded. Pyle, J., and Tavitas, J., concur. Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020 Page 8 of 8

2020-11-20 19:42:09.426879+00

Snow Hill Coal Corporation v. Commissioner. Snow Hill Coal Corp. v. Commissioner Docket No. 108950. United States Tax Court 1943 Tax Ct. Memo LEXIS 23; 2 T.C.M. (CCH) 1100; T.C.M. (RIA) 43514; December 17, 1943 *23 Wm. H. Cooke, Esq., for the petitioner. Edw. C. Adams, Esq., for the respondent. KERN Memorandum Findings of Fact and Opinion The Commissioner determined deficiencies in petitioner's income tax for the taxable years 1936 and 1937 in the respective amounts of $8,208.61 and $18,124.91. Only that part of the deficiencies determined is now at issue which results from the respondent's disallowance of a deduction claimed by petitioner in 1937 for percentage depletion in an amount of $2,700.06. The question presented is whether petitioner properly elected to take percentage depletion as to coal mined from certain property leased by it in 1937. Findings of Fact Petitioner is an Indiana corporation operating coal mines in Vigo County, Indiana, with its principal office in Indianapolis, and filed its corporate income tax return for 1937 with the collector of internal revenue at Indianapolis, Indiana. In 1934, petitioner began the operation of mining coal under a lease from the Talley Coal Mining Company, on a tract of land in Vigo County consisting of approximately 2,208 acres, and such operations have continued since that time. In 1937, petitioner entered into an oral lease with Walter*24 Bledsoe and William J. Freeman for a track of land, approximately 350 acres in size, known as the Fayette Realty & Development Tract. A royalty of 3 cents per ton was to be paid on the coal mined from this property; and from the operations thereon, which began in May or June, 1937, 32,401.5 tons of coal were mined during the remaining months of that year. To petitioner's income tax return for 1936, two years after the first operations under the Talley lease, and the year preceding the acquisition of the Fayette lease, the petitioner appended the following statement: Taxpayer now elects to have the depletion allowance for such property for the taxable year 1936 computed with regard to percentage depletion of it as provided in Section 114 of the Revenue Act of 1936, in accordance with Regulation 942.23 promulgated in accordance with said Act and all applicable sections of the Revenue Act of 1936. Attached to the same return was a substantial repetition of that statement with the following added sentence: Taxpayer now elects to deplete its mining property upon the basis of five per centum for the taxable year 1936 and all subsequent taxable years. In its tax return for 1937, no *25 statement was made concerning any election, but petitioner computed its depletion on a percentage basis and took the percentage depletion deduction with respect to both properties. Opinion KERN, Judge: Petitioner makes no contention that its statement of election attached to its 1936 return was effective as applied to the Talley lease, and no such contention could be validly advanced since the 1936 return was not its first return with respect to that property. It contends, however, that the 1936 election is applicable to the Fayette lease, acquired in 1937, and that, in any event, its computation of its depletion deduction on the percentage basis in its 1937 return which was the first return of the income from that lease, constitutes an adequate election. The language of the statute and the regulations is sufficient authority for the denial of petitioner's claim. Section 114 (b) (4) states in part: * * * A taxpayer making his first return under this title in respect of a property shall state whether he elects to have the depletion allowance for such property for the taxable year for which the return is made computed with or without regard to percentage depletion, and the depletion*26 allowance in respect of such property for such year shall be computed according to the election thus made. If the taxpayer fails to make such statement in the return, the depletion allowance for such property for such year shall be computed without reference to percentage depletion. * * * Clearly, the statute comprehends both the making of a statement of an election, and the computation of the depletion allowance in accordance with that election, in the first return. This requirement precludes the possibility of applying the attempted election of 1936 to the after-acquired lease of 1937, which is admittedly a separate property. Article 23 (m) 5 of Regulations 94 contains the following applicable language: * * * a taxpayer making his first return * * * in respect of a property must state as to each such property whether it elects to have the depletion allowance for each such property for the taxable year computed with or without reference to percentage depletion * * *. It is too well settled to require extensive discussion or citation of authority that deductions and credits are matters of legislative grace, and not of right, and that a taxpayer in order to avail himself of their*27 benefits, must comply strictly and fully with the requirements of the statute granting them. ; ; . As Mr. Justice Douglas expressed the rule with application to the allowance of percentage depletion deductions in . That opportunity was afforded as a matter of legislative grace; the election had to be made in the manner and in the time prescribed by Congress. The offer was liberal. But the method of its acceptance was restricted. Petitioner attributes its failure to attach a statement of election to its 1937 return partly to the fact that it intended its 1936 election to apply to after-acquired property, and partly to the fact that no space was provided for the statement in the form of return furnished for its use by respondent. In view of the fact that the advantages of percentage depletion are available to only a very limited group of the taxpayers who use the form, *28 we question the validity of that criticism. The requirements of the statute are clearly expressed and that petitioner was aware of their existence is evidenced by the fact that it did attach such a statement to its 1936 return, which was equally barren of special accommodations therefor. We cannot hold that respondent's failure to have provided space on the return for the election had the effect, under the circumstances, of laying a "trap" for petitioner. Petitioner feels that its act of computing its depletion deduction on the percentage basis in 1937 constituted an effective election as to the Fayette lease. But that argument would apply equally to the Talley lease, since the 1937 return included the income from the Talley lease, and the computation thus applied to it. Yet petitioner makes no contention that it is entitled to use the percentage basis for the Talley lease. Obviously it is not so entitled because of its failure to make a timely election. Similarly, we think petitioner's failure to have stated any effective election at all as to the Fayette lease deprives it of the statutory benefit as to that property, as well. Petitioner has not met the statutory requirements with*29 respect to the deduction in question, and it was therefore properly disallowed. Decision will be entered for respondent.

2020-12-03 16:10:22.88131+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07254.htm

Matter of Raheem A. (Judith B.) (2020 NY Slip Op 07254) Matter of Raheem A. (Judith B.) 2020 NY Slip Op 07254 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 528680 [*1]In the Matter of Raheem A., Appellant, Judith B., Respondent, and Patricia C., Respondent. (Proceeding No. 1.) In the Matter of Avangeline B., an Infant. Patricia C., Respondent; Raheem A., Appellant, et al., Respondent. (Proceeding No. 2.) Calendar Date: October 13, 2020 Before: Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ. Michelle I. Rosien, Philmont, for appellant. Copps Dipaola Silverman, PLLC, Albany (Joseph R. Williams of counsel), for Patricia C., respondent. Christopher J. Obstarczyk, Latham, attorney for the child. Pritzker, J. Appeal from an order of the Family Court of Albany County (Maney, J.), entered January 31, 2019, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to [*2]Domestic Relations Law article 7, to determine that respondent Raheem A.'s consent was not required for the adoption of his child. Raheem A. (hereinafter the father) and respondent Judith B. are the unwed biological parents of a daughter (born in 2013). Pursuant to a January 2015 order entered on consent, Patricia C. was awarded sole legal and physical custody of the child. At that time, the father was incarcerated and the order directed Patricia C. to keep the father apprised of the child's medical and social development and provide the father with a picture of the child "at quarterly intervals." The order also permitted the father to send the child cards, letters and gifts. Upon his release from incarceration, the father filed a modification petition seeking visitation with the child. In December 2015, the court granted the father's petition by awarding him supervised parenting time, with no additional restrictions. In 2016, the father became incarcerated again and, upon his release in November 2017, he commenced the first of these proceedings, seeking to modify the 2015 custody order so that he could resume visitation with the child. Patricia C. then commenced the second of these proceedings to adopt the subject child and seeking, among other things, a determination that the father's consent was not required for the adoption. Following a fact-finding hearing, Family Court ultimately dismissed the father's petition based upon his failure to establish a change in circumstances. The court also determined that his consent to the adoption was not required because he failed to show that he sufficiently provided financial support for the child and that he maintained regular communication with the child. The father appeals, arguing only that the court erred in determining that his consent to the adoption was not required. Domestic Relations Law § 111 (1) (d) requires a biological father's consent for someone to adopt his child when the child was "born out-of-wedlock . . ., but only if such father shall have maintained substantial and continuous or repeated contact with the child." Such contact "must be evinced by (1) financial support by the father of a fair and reasonable sum according to his means and (2) either visiting the child at least monthly when physically and financially able to do so or, if physically or financially unable to visit monthly, by regular communication with the child or the person having custody of the child" (Matter of Lillyanna A. [William ZZ.—John B.], 179 AD3d 1325, 1326 [2020], lv denied 35 NY3d 908 [2020]). "As the statute makes clear, Domestic Relations Law § 111 (1) (d) imposes a dual requirement upon the biological father — satisfaction of both the support and contact/communication provisions — and the father's unexcused failure to satisfy either of these requirements is sufficient to warrant a finding that his consent to the proposed adoption is not required" (Matter of Bella FF. [Margaret GG.—James HH.]), 130 AD3d 1187, 1187-1188 [2015] [citations omitted]; accord Matter of Lillyanna A. [William ZZ.—John B.], 179 AD3d at 1326). The testimony at the fact-finding hearing established that when the child was born, in September 2013, the father was incarcerated and was not released until September 2015. The child has lived with Patricia C. since she was four months old. While incarcerated, the father filed a paternity petition that ultimately resulted in an order of filiation declaring him to be the father of the child and, in January 2015, an order was entered that permitted the father to send the child cards, gifts and letters. Patricia C. testified that the father did not send cards, gifts or letters to the child, but the father testified that he did send letters to Patricia C.'s address. Approximately two months after the father's release [*3]from incarceration, he filed a petition seeking visitation, which Family Court awarded in a December 2015 order. Pursuant to the order, Patricia C., or another party deemed appropriate by Patricia C., was to supervise visitation at times and places as the parties agreed. At the time, the father lived approximately 50 miles from where Patricia C. resides. The father was again incarcerated in July 2016. Patricia C. testified that, prior to being reincarcerated, the father had four or five visits with the child and that she did not limit the number of visits that the father could have. In contrast, the father testified that he had 10 visits with the child during that time. Both Patricia C. and the father testified that he canceled scheduled visits, usually because of transportation issues. Testimony further established that, between July 2016 — when the father was reincarcerated — and November 2017 — when he was released, the father did not have any contact with the child or Patricia C. The father's explanation for the lack of contact was that he did not have contact information for Patricia C. while incarcerated, despite admitting to having known her address when filing prior petitions, including those filed while he was incarcerated. Patricia C. testified that she had neither moved nor changed her telephone number. The father testified that he wrote to Family Court in March 2017, eight months after being reincarcerated, asking to be sent prior orders and petitions so that he could find out Patricia C.'s address.[FN1] The father testified that he received no response and that he did not follow up the request with a telephone call. He also testified that he asked counselors at the prison for assistance in obtaining contact information for Patricia C. The father admitted that he did not contact his attorney for assistance, nor did he contact the attorney for the child, despite having contacted her by letter when he was incarcerated previously. The father also testified that he sent letters to family members asking for assistance in finding Patricia C.'s address, but that they did not respond. A few weeks after he was released from incarceration the second time, the father filed a modification petition seeking to reestablish contact with the child. He also testified that, after he was released from incarceration, he found a telephone number on the Internet that he believed to be that of Patricia C. and he called it and left a voicemail. He did not attempt to call her again. Patricia C. testified that she received a voicemail from the father, but that it was too "garbled" when he recited his telephone number. She further testified that she attempted to call the father back using his old cellular phone number, but it did not work. Here, the evidence failed to demonstrate that the father either visited the child at least monthly when physically and financially able to do so or that he had regular communication with the child or Patricia C. (see Matter of Lillyanna A. [William ZZ.—John B.], 179 AD3d at 1327; Matter of Bella FF. [Margaret GG.—James HH.], 130 AD3d at 1189). Although there are testimonial inconsistencies regarding the exact number of visits between the father and the child, Family Court credited Patricia C.'s testimony, a determination with which we accord deference (see Matter of Blake I. [Richard H.—Neimiah I.], 136 AD3d 1190, 1191 [2016]; Matter of Dakiem M. [Demetrius O.—Dakiem N.], 94 AD3d 1362, 1362-1363 [2012], lv denied 19 NY3d 807 [2012]). The record reveals that, at the time of the fact-finding hearing, the child was five years old and had visited with her father four or five times two years prior. The court also found that, despite being permitted to do so, the father did not send letters, cards or gifts or maintain contact with Patricia C. while he was incarcerated. Additionally, the father's [*4]"incarceration did not excuse his failure to maintain substantial and continuous or repeated contact with his child" (Matter of Bella FF. [Margaret GG.—James HH.], 130 AD3d at 1189 [internal quotation marks, brackets and citations omitted]; see Matter of Ysabel M. [Ysdirabellinna L.—Elvis M.], 137 AD3d 1502, 1505 [2016]; Matter of Kevina G. [Kevin C.], 124 AD3d 889, 890 [2015], lv denied 25 NY3d 904 [2015]). Moreover, although he testified to his attempts to find contact information for Patricia C. while incarcerated, given that he neglected to follow up on his Family Court record request or contact his prior attorney who had access to the case file, the father "failed to demonstrate that anyone interfered with his attempts or that he availed himself of viable options to do so while incarcerated" (Matter of Keyanna AA., 35 AD3d 1079, 1081 [2006]). Thus, under these circumstances, Family Court correctly found that the father's consent to the adoption was not required (see Domestic Relations Law § 111 [1] [d]; Matter of Lillyanna A. [William ZZ.—John B.], 179 AD3d at 1327; Matter of Bella FF. [Margaret GG.—James HH.], 130 AD3d at 1189). In light of this determination, the father's remaining contentions have been rendered academic. Egan Jr., J.P., Mulvey and Aarons, JJ., concur. ORDERED that the order is affirmed, without costs. Footnotes Footnote 1: This letter was admitted into evidence.

2020-12-03 16:10:23.108744+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07264.htm

Matter of Park Beach Assisted Living, LLC v Zucker (2020 NY Slip Op 07264) Matter of Park Beach Assisted Living, LLC v Zucker 2020 NY Slip Op 07264 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 530444 [*1]In the Matter of Park Beach Assisted Living, LLC, et al., Appellants, v Howard Zucker, as Commissioner of Health, et al., Respondents. Calendar Date: October 14, 2020 Before: Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ. Nixon Peabody, LLP, Albany (Phillip Rosenberg of counsel), for appellants. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents. Lynch, J. Appeal from a judgment of the Supreme Court (Ferreira, J.), entered October 31, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondents' motion to dismiss the petition. In 2014, Samuel J. Konig, the sole proprietor of Park Inn — an adult home — was granted contingent approval by respondent Department of Health (hereinafter DOH) to apply for permission to convert a portion of the facility's beds into assisted living program (hereinafter ALP) beds. An application was submitted and pending when, on June 5, 2018, a modification request was made seeking to change the ownership of Park Inn from a sole proprietorship to a limited liability company in the name of petitioner Park Beach Assisted Living, LLC (hereinafter Park Beach), in which Konig would be one of two members. Just five days later, Konig passed away, prompting DOH to administratively withdraw the ALP application. At the request of counsel for Park Beach (hereinafter counsel), DOH reconsidered and continued to review the application, accepting further document submissions from counsel. On January 17, 2019, DOH's representative sent an email (hereinafter the January 17 email) to counsel, attaching a letter also dated January 17, 2019 (hereinafter the January 17 letter). The January 17 letter advised that DOH had concluded, as discussed during a conference call with counsel the day before, that a transfer to the new entity was not possible, that the administrative withdrawal would remain intact and that an amended application would have to be submitted. The January 17 letter, which was sent by "Certified Mail Return Receipt Requested," was received by counsel on January 22, 2019. On May 22, 2019, petitioners commenced this CPLR article 78 proceeding against DOH and respondent Commissioner of Health challenging DOH's administrative withdrawal of the application as arbitrary and capricious. Petitioners obtained an order to show cause directing service of the petition to be made upon the Attorney General by May 28, 2019 and effectuated service in that manner five days before the deadline. Respondents thereafter moved to dismiss the petition as time barred or, alternatively, for lack of personal jurisdiction due to improper service of process. Petitioners opposed the motion and cross-moved for an order extending the time to effectuate proper service pursuant to CPLR 306-b or 2004. Finding that the governing four-month statute of limitations began to run upon counsel's receipt of the January 17 email, Supreme Court granted respondents' motion, dismissed the petition on the ground that it was time-barred and denied petitioners' cross motion as moot. Petitioners appeal. There is no dispute that the January 17 letter constituted a final and binding determination. At issue is whether counsel's receipt of the January 17 email or counsel's receipt of the January 17 letter by certified mail on January 22, 2019 provided the notice necessary to trigger the running of the statute of limitations. Generally, the four-month statute of limitations begins to run when the party receives oral or written notice of the adverse determination (see Matter of Stack v City of Glens Falls, 169 AD3d 1220, 1221 [2019]). The burden was on respondents "to establish that clear notice of the determination was afforded to . . . petitioner[s] . . ., and any ambiguity in the communication[] purportedly constituting notice must be resolved in favor of . . . petitioner[s]" (id. [internal quotation marks and citation omitted]). In their brief, petitioners acknowledge that "notice may take various forms" and that they received the January 17 letter with the January 17 email. They contend, however, that respondents should be bound by the mode of delivery chosen, such that formal notice would take effect only upon delivery of the January 17 letter via certified mail. At the very least, petitioners [*2]maintain that the commentary in the January 17 email, advising that "[t]his letter is being sent to your attention via postal mail today," and the certified mailing component created an ambiguity that must be resolved in their favor. We recognize that there is only one letter, the January 17 letter, a copy of which was attached to the January 17 email and the original was delivered by certified mail on January 22, 2019. That said, even though an email delivery could have sufficed, respondents opted to effect delivery of the January 17 letter through the more formal certified mailing process, by which actual delivery and receipt are confirmed with the recipient's signature. Given that format, it was not necessarily unreasonable for petitioners to have assumed that receipt of the January 17 letter on January 22, 2017 triggered the limitations period or, at least, an ambiguity was created as to whether to measure the time period from that date. As such, we conclude that Supreme Court erred in granting respondents' motion to dismiss the petition as untimely (see Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 358 [1978]; Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126-127 [1969]; Matter of Musilli v New York State & Local Police & Fire Dept. Sys., 249 AD2d 826, 827 [1998]). Alternatively, respondents maintain that the judgment should be affirmed because petitioners failed to obtain personal jurisdiction over them. Petitioners submitted, and Supreme Court signed, a proposed order to show cause providing for service upon respondents by service on the Attorney General. Petitioners complied with the terms of that order, but such service was manifestly defective because petitioners were also statutorily required to effect service upon respondents (see CPLR 307, 7804 [c]). In their cross motion, petitioners promptly sought permission to correct this error, and it is evident that respondents were in no way prejudiced. Not to be overlooked is the looming expiration of the statute of limitations. Under such circumstances, rather than dismissing a proceeding, a court is authorized to extend the time for service "upon good cause shown or in the interest of justice" (CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]). We recognize that Supreme Court did not address the cross motion on the merits, but, given respondents' alternative argument on appeal and as a matter of judicial economy, we opt to do so and conclude, "in the interest of justice" (CPLR 306-b), that petitioners should not be penalized for relying on the terms of the order to show cause signed by Supreme Court (see Matter of Stephens v New York State Exec. Bd. of Parole Appeals Unit, 297 AD2d 408, 410 [2002]; Matter of Taylor v Poole, 285 AD2d 769, 770 [2001]). As such, the matter must be remitted to Supreme Court for the issuance of a new order to show cause requiring service upon respondents and extending the time of service to a new date designated by that court. Garry, P.J., Egan Jr., Clark and Colangelo, JJ., concur. ORDERED that the judgment is reversed, on the law, without costs, motion denied, cross motion granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

2020-12-03 16:10:23.42099+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07258.htm

Matter of Mathena XX. v Brandon YY. (2020 NY Slip Op 07258) Matter of Mathena XX. v Brandon YY. 2020 NY Slip Op 07258 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529454 [*1]In the Matter of Mathena XX., Appellant, v Brandon YY., Respondent. (And Another Related Proceeding.) Calendar Date: October 21, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ. Pamela B. Bleiwas, Ithaca, for appellant. Christian J. Root, Vestal, for respondent. Susan McNeil, Brooktondale, attorney for the children. Egan Jr., J.P. Appeal from an order of the Family Court of Tioga County (Morris, J.), entered May 29, 2019, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation. Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 2012 and 2015). Pursuant to an August 2017 custody and visitation order, entered on stipulation of the parties, Family Court granted the parents joint legal and shared physical custody of the children and designated the father's residence in the Town of Spencer, Tioga County as the children's primary residence for purposes of enrolling the children in the Spencer School District. The father subsequently moved to a new residence outside of the Spencer School District and, in August 2018, the mother commenced this custody modification proceeding by order to show cause, seeking to have her residence in the Town of Candor, Tioga County designated as the children's primary residence for purposes of registering the children in the Candor School District prior to the impending school year. Family Court signed the mother's order to show cause, temporarily granting her permission to enroll the children in the Candor School District. Later that same month, the father filed his own modification petition, seeking to have his new residence in the Town of Interlaken, Seneca County designated as the children's primary residence for purposes of school enrollment.[FN1] In January 2019, the father filed an amended modification petition, amplifying the allegations in his prior petition and seeking sole physical custody of the children. Following a fact-finding hearing on both petitions, Family Court continued the grant of joint legal custody to the parties and granted the father's petition, providing him with primary decision-making authority with regard to the children's educational decisions and designating his residence as the children's primary residence for purposes of school enrollment commencing in the fall of 2019. Family Court further provided parenting time for the mother on the first, second and fourth weekends of each month and established a parenting schedule for holidays and vacations. The mother appeals. "A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child[ren]'s continued best interests" (Matter of Cameron ZZ. v Ashton B., 183 AD3d 1076, 1078 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 913 [2020]; accord Matter of LeVar P. v Sherry Q., 181 AD3d 1008, 1009 [2020]). Here, the parties agree that a change in circumstances occurred since entry of the prior order given that the father moved out of the Spencer School District, which was specifically designated as the children's school district in the prior consent order, and the fact that the parents now reside in different school districts and cannot agree on where the children should attend school; as such, an inquiry into whether the children's best interests would be served by a modification of the physical custody arrangement set forth in the prior order is warranted (see Matter of Jennifer VV. v Lawrence WW., 186 AD3d 946, 948 [2020]; Matter of Kuklish v Delanoy, 155 AD3d 1376, 1377 [2017]; Matter of Woodrow v Arnold, 149 AD3d 1354, 1356 [2017]). In making a best interests determination, Family Court "must consider a variety of factors, including the quality of the parents' respective home [*2]environments, the need for stability in the children's [lives], each parent's willingness to promote a positive relationship between the children and the other parent and each parent's past performance, relative fitness and ability to provide for the children's intellectual and emotional development and overall well-being" (Matter of Jacob WW. v Joy XX., 180 AD3d 1154, 1155 [2020] [internal quotation marks, brackets and citation omitted]; see Matter of Dennis F. v Laura G., 177 AD3d 1110, 1112 [2019]). The evidence at the fact-finding hearing established that both parents have a bonded, loving relationship with the children and, following their separation in July 2017, were able to effectively coparent and manage shared joint legal custody, physical custody exchanges and the older child's school schedule.[FN2] It was ultimately the father's 2018 relocation out of the Spencer School District to Interlaken, approximately 40 miles from the mother's residence in Candor, that led to the parents seeking court intervention, as they could not agree on whose household and school district would best serve the interests of the children. To that end, the mother testified that, after moving out of the former marital residence in July 2017, she moved in with her brother to his two-bedroom trailer, where the children share a bedroom. She indicated that, given the brother's work schedule, he is only home about one week per month, and she has plans to move into her own two-bedroom trailer with her boyfriend in the near future. She is presently employed as a postal worker, working six days a week from 9:30 a.m. to 12:30 p.m. After the father moved to Interlaken, she obtained court approval to enroll the children in the Candor School District. According to the mother, she thereafter brought the older child to school each day, attended parent- teacher conferences and would help with the child's homework. The mother also engaged the younger child in occupational and speech therapy and was able to coordinate for him to receive these services either at her home or the home of the babysitter. Although the mother and the father do not communicate frequently, she testified that they have no issues communicating with respect to the children's needs and she has no concerns with the care that the children receive when they are in his custody. The father testified that, prior to moving to Interlaken, he was employed as a residential counselor for troubled children. Following his July 2017 breakup with the mother, he initially moved into his own apartment and, in December 2017, briefly moved back in with his parents in Spencer. In February or March 2018, the father moved in with his then-girlfriend to a four-bedroom, two-bath home that she owns in Interlaken. He and his girlfriend share this home with her five-year-old child from another relationship, and both her child and the children have their own separate bedrooms. Following his move to Interlaken, the father started a new job as a heating, ventilation and air-conditioning technician where he works full time, Monday through Friday from 7:30 a.m. to 4:00 p.m. The father testified that, although the physical custody exchanges between him and the mother have [*3]generally worked out "very well,"[FN3] he did have concerns with the children's hygiene while in the mother's custody, as they were often returned to him unbathed and smelling strongly of cigarette smoke.[FN4] The father also introduced three photographs of the mother's home — taken on one occasion in July 2018 after he dropped them off after spending three days at his residence — that showed her residence unkempt and in complete disarray. Contrary to the mother's assertion, the father's allegations against the mother did not demonstrate that he harbors any hostility or animosity towards her that would reflect negatively on his ability to foster a positive relationship between her and the children. No evidence was presented indicating that he ever spoke negatively of the mother in front of the children, or at any other time, or attempted to alienate the children from her. On the contrary, the father testified that he wants the mother to play an active role in the children's lives and was amenable to whatever visitation that Family Court saw fit to provide her. His allegations regarding the condition of the mother's home, the children's hygiene and his concern with her smoking and using alcohol around the children were based on his own personal observations and were not intended to besmirch the mother's character so much as to provide context for the court to be able to render an appropriate decision as to the best interests of the children. With regard to his move to Interlaken, the father testified that he promptly notified the mother upon making his decision to move. Although it was his belief that the terms of the parties' prior custody order gave him the authority to move the children to Interlaken and enroll them into a new school district, he was reluctant to move the older child from the Spencer School District mid-year and discussed this fact with the mother.[FN5] The father testified that, in June 2018, he initially filed a petition [*4]seeking to have his new residence designated as the children's primary residence for school enrollment purposes, but indicated that he withdrew said petition after the mother purportedly acquiesced in this decision.[FN6] Accordingly, the father testified that he was surprised to learn that the mother subsequently petitioned to have the children enrolled in the Candor School District and had obtained an ex parte temporary order from Family Court to that effect. In rendering its determination, Family Court specifically indicated that it signed the mother's August 2018 order to show cause granting her temporary permission to enroll the children in the Candor School District because it was under the impression that the father had relocated to Interlaken without ever having consulted with the mother. At the fact-finding hearing, however, the mother could not recall having spoken with the father about his plans to relocate and averred that it was the father who had acquiesced to allowing her to enroll the children in the Candor School District, although she could also not recall when this conversation had occurred. Accordingly, to the extent that Family Court found the mother's testimony to be less credible than that of the father, and having reviewed the totality of the circumstances and affording the appropriate deference to Family Court's credibility and factual findings, we are satisfied that Family Court's determination granting the father primary physical custody of the children and decision-making authority over the children's educational decisions is amply supported by the record and we decline to disturb it (see Matter of Jennifer VV. v Lawrence WW., 186 AD3d at 948-949; Matter of Dennis F. v Laura G., 177 AD3d at 1112). Mulvey, Aarons, Pritzker and Colangelo, JJ., concur. ORDERED that the order is affirmed, without costs. [*5] Footnotes Footnote 1: In November 2018, Family Court issued a temporary order, continuing its grant of joint legal custody of the children and designating the mother's residence as the children's primary residence, pending the outcome of the subject proceedings. Footnote 2: At the time of the March 2019 fact-finding hearing, the younger child had not yet reached school age. Footnote 3: The father did complain that the mother was late to a few exchanges that posed difficulties for his and his girlfriend's work schedules. Footnote 4: Although the mother denied smoking in the presence of the children, she admitted that she does smoke in both her residence and her vehicle, but only when the children are not present. She further testified that she regularly smokes marihuana on weekends and evenings after the children go to bed and that her boyfriend drinks in the children's presence on a daily basis. Footnote 5: The father specifically indicated that he and the mother had discussed the option of having the mother move to a new residence in Spencer, as she was contemplating moving to a new residence in the near future anyhow. Footnote 6: Family Court took judicial notice that "petitions were filed by the father in Chemung County on April 25, 2019 and June 29, 2019," and "[b]oth petitions are listed in the Uniform Court Management System [with] notes as withdrawn by [the father] on May 29, and August 7, 2018."

2020-12-03 16:10:23.651583+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07259.htm

Matter of Harley K. v Brittany J. (2020 NY Slip Op 07259) Matter of Harley K. v Brittany J. 2020 NY Slip Op 07259 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529559 [*1]In the Matter of Harley K., Petitioner, v Brittany J., Appellant. Calendar Date: October 21, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ. Monique B. McBride, Albany, for appellant. Peter P. Charnetsky, Vestal, attorney for the child. Mulvey, J. Appeal from an order of the Family Court of Broome County (Pines, J.), entered July 11, 2019, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to hold respondent in willful violation of a prior order of visitation. Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of one child (born in 2014). In May 2018, Family Court issued an order granting sole legal and physical [*2]custody to the mother and parenting time to the father on two set weekdays and alternate weekends. The order further provided that the father "shall ensure" that the child and the son of the father's girlfriend (hereinafter the boy) "are not left alone together." On January 2, 2019, the mother filed a violation petition and a modification petition, the latter of which sought suspension of the father's parenting time, with both petitions alleging that the father had repeatedly left the child and the boy together unsupervised, resulting in harm to the child through the boy hitting and inappropriately touching her. Also on January 2, the father filed a modification petition seeking joint legal and physical custody because the mother had withheld the child from him during his scheduled parenting time. In February 2019, the father filed a violation petition and a modification petition, similarly alleging that the mother had denied him parenting time with the child and seeking joint custody. He filed another modification petition in April 2019. In June 2019, the mother again filed a modification petition, seeking supervised parenting time for the father and precluding contact between the child and the boy. At a June 26, 2019 fact-finding hearing, Family Court sua sponte dismissed the mother's January 2019 modification petition, incorporating its allegations into her June 2019 filing. The mother then withdrew her January 2019 violation petition. Following testimony, the court dismissed the father's January 2019 violation petition and, in regard to his February 2019 violation petition, issued a July 2019 order finding that the mother willfully violated the prior order by engaging in self-help and by denying the father visitation. The court did not impose a sanction, instead warning that incarceration would likely follow any subsequent finding of contempt sustained against the mother.[FN1] The mother appeals from the July 2019 order. "The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" (Matter of Carl KK. v Michelle JJ., 175 AD3d 1627, 1628 [2019] [citations omitted]; see Matter of Eliza JJ. v Felipe KK., 173 AD3d 1285, 1286 [2019]; Matter of Wesko v Hollenbeck, 149 AD3d 1175, 1176 [2017]; Matter of James XX. v Tracey YY., 146 AD3d 1036, 1037 [2017]; Matter of Prefario v Gladhill, 140 AD3d 1235, 1236 [2016]). This Court will accord deference to Family Court's credibility findings, and the determination of whether to hold a party in contempt will generally not be disturbed absent an abuse of discretion (see Matter of Jemar H. v Nevada I., 182 AD3d 805, 808 [2020]; Matter of Carl KK. v Michelle JJ., 175 AD3d at 1628; Matter of Michael M. v Makiko M., 152 AD3d 909, 910 [2017]; Matter of Wesko v Hollenbeck, 149 AD3d at 1176). The mother does not dispute that the May 2018 order was clear, that she had notice of it and that she refused to allow the father to take the child from late December 2018 through the filing of his [*3]petition in mid-February 2019, but she asserts that her actions were not willful. On the record at the hearing, Family Court stated that the mother took it upon herself to violate the prior order even though a court-ordered investigation by Child Protective Services came back as unfounded, with no child protective concerns noted in either household. The court stated in the July 2019 order that it found the mother in contempt because she "engaged in self-help." We affirm. The mother sought court intervention, by filing both a violation petition and a modification petition — seeking to suspend the father's parenting time — on January 2, 2019. However, the mother later withdrew her violation petition,[FN2] and the record does not indicate that she sought or obtained a temporary order that would have permitted her to suspend visits or require them to be supervised during the pendency of an investigation, instead intentionally refusing — without any authority — to allow the father to exercise his court-ordered time with the child (compare Matter of Romanello v Davis, 49 AD3d 652, 653 [2008]). Furthermore, an investigation apparently revealed that the mother's concerns for the child's safety were unfounded (compare Matter of A.F. v N.F., 156 AD2d 750, 752 [1989]). Therefore, Family Court did not abuse its discretion in concluding that the mother willfully violated the May 2018 order (see Matter of Kanya J. v Christopher K., 175 AD3d 760, 764 [2019], lvs denied 34 NY3d 905, 906 [2019]). We note that the court did not impose any sanction against the mother; we will not address her challenge to the court's statement about potential future sanctions for further violations, due to the speculative nature of this occurring. Egan Jr., J.P., Aarons, Pritzker and Colangelo, JJ., concur. ORDERED that the order is affirmed, without costs. Footnotes Footnote 1: Family Court separately denied the father's modification petition and scheduled a hearing on the mother's modification petition. According to a September 2019 order, the parties agreed to modifications of the May 2018 order. Footnote 2: The record does not contain any reason for this withdrawal.

2020-12-03 16:10:23.880883+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07261.htm

Matter of Coryn XX. v Brian XX. (2020 NY Slip Op 07261) Matter of Coryn XX. v Brian XX. 2020 NY Slip Op 07261 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529765 [*1]In the Matter of Coryn XX., Appellant, v Brian XX., Respondent. Calendar Date: October 14, 2020 Before: Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ. Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Dennis B. Laughlin, Cherry Valley, attorney for the children. Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Lambert, J.), entered July 17, 2019, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and/or visitation. Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two daughters and a son (born in 2001, 2004 and 2005, respectively). On November 19, 2018, Family Court entered a custody and visitation order, on consent of the parties, granting the parents joint legal custody of the children and the father physical placement of the children and providing parenting time to the mother every other Sunday at 6:00 p.m., to be conducted in a public place.[FN1] The order also required the mother to enroll and participate in family counseling sessions with the daughters.[FN2] One week later, on November 26, 2018, the mother appeared as a defendant in Town Court and, as part of said proceedings, the court granted a temporary order of protection in favor of the father and the children that, among other things, required the mother to refrain from contacting the father or the children except as permitted by "a subsequent order issued by a [F]amily or [S]upreme [C]ourt in a custody visitation or child abuse or neglect proceeding." In February 2019, the mother commenced this modification proceeding, seeking, among other things, sole custody of the children, with supervised visitation for the father or, in the alternative, additional parenting time with the children. Following fact-finding and Lincoln hearings, Family Court dismissed the mother's petition, finding that a modification of its prior order was not in the best interests of the children and reinstated its prior November 19, 2018 custody and visitation order. The mother appeals.[FN3] [FN4] We affirm. A party seeking a modification of a prior order of custody and/or visitation must ordinarily demonstrate that there has been a change in circumstances since entry of the prior order to warrant an analysis as to whether modification thereof would serve the best interests of the children (see Matter of Bonnie AA. v Kiya DD., 186 AD3d 1784, 1786 [2020]). Here, however, Family Court's prior order specifically provided that, should the mother wish to file a subsequent petition seeking "more or different visitation," she would not be required to show a change in circumstances; accordingly, our inquiry shifts to an analysis of the best interests of the children (see Matter of Curtis D. v Samantha E., 182 AD3d 655, 656 [2020]). To that end, Family Court has broad discretion to develop a parenting time schedule that serves the best interests of the children, and such determination will not [*2]be disturbed where it is supported by a sound and substantial basis in the record (see Matter of Jill Q. v James R., 185 AD3d 1106, 1108 [2020]; Matter of Porter-Spaulding v Spaulding, 164 AD3d 974, 974-975 [2018]). Here, scant evidence was submitted at the fact-finding hearing in support of the mother's modification petition. The mother testified that she is presently unemployed and recently moved into a two-bedroom trailer with her boyfriend. By her own account, other than her recent move, "nothing really" has changed in her or the children's circumstances since entry of the prior order granting her parenting time. The mother acknowledged that her present living situation would require the daughters to share a bedroom and the son to stay on the couch should she be granted such additional visitation, but indicated that she and her boyfriend were currently "trying to find a different place." She offered no details about the nature or quality of the two or three visitations that she was able to engage in with the daughters following entry of the prior order,[FN5] nor did she provide any particulars about her past or present relationship with the children or indicate how she planned on providing for their overall well-being, including their intellectual and emotional development. Further, although the prior order required the mother to enroll and participate in family counseling with the daughters, she admittedly had yet to comply with said obligation. We are cognizant that the temporary order of protection issued by Town Court just one week after entry of the November 2018 custody and visitation order hindered the mother's ability to exercise parenting time, communicate with the children or otherwise comply with the terms thereof. The fact that the mother has not been able to exercise her parenting time under such circumstances, however, does not, in and of itself, justify a modification of the prior order to provide her with additional parenting time, particularly where, as here, the record is devoid of any other evidence indicating that such a modification is presently in the children's best interests. Contrary to the mother's assertion, it was the issuance of the temporary order of protection that restricted her ability to exercise her parenting time and not any inappropriate or affirmative conduct on the part of the father. By reimplementing the terms of the original November 19, 2019 order, Family Court removed the legal barrier imposed by the temporary order of protection, once again providing the mother with the ability to exercise parenting time with the children, while still providing for, among other things, family counseling sessions between her and the daughters that will hopefully improve communication and strengthen their relationship in light of the changed family dynamics following the breakup of the parents' relationship.[FN6] Should the mother appropriately exercise her scheduled parenting time and [*3]demonstrate her willingness and ability to comply with the conditions imposed by Family Court's prior order, she remains free to file a petition seeking additional visitation at that time. At this point, on the record before us, we are satisfied that there is a sound and substantial basis in the record to support Family Court's determination that a modification of the prior court order is not in the children's best interests (see Matter of Janeen MM. v Jean-Philippe NN., 183 AD3d 1029, 1030 [2020], lv dismissed 35 NY3d 1079 [2020]; Matter of Steven EE. v Laura EE., 176 AD3d 1323, 1325 [2019]). Garry, P.J., Lynch, Clark and Colangelo, JJ., concur. ORDERED that the order is affirmed, without costs. Footnotes Footnote 1: The order does not specify the duration of said visitation. Footnote 2: Family Court provided the son the option of whether to attend the mother's scheduled visitations, and it did not mandate his participation in family counseling sessions. Footnote 3: The father has not filed a brief in this matter. Footnote 4: Inasmuch as the oldest child turned 18 during the pendency of this appeal, the mother's appeal as it pertains to the oldest child has been rendered moot (see Matter of Mauro NN. v Michelle NN., 172 AD3d 1493, 1493 n [2019]). Footnote 5: The mother testified that during one particular visitation at a local fast food restaurant, the children paid for their own meals, but blamed this on both the fact that Family Court's order failed to specify that she had to provide dinner and that the children had not informed her that they were hungry. Footnote 6: To the extent that the mother contends that the father's testimony demonstrates his continued unwillingness to facilitate visitation in accord with Family Court's order, her remedy lies in the filing of a violation and/or enforcement petition before Family Court should such a circumstance come to pass.

2020-12-03 16:10:24.201545+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07260.htm

Launt v Lopasic (2020 NY Slip Op 07260) Launt v Lopasic 2020 NY Slip Op 07260 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529610 [*1]Kim M. Launt et al., Appellants- Respondents, v Natalie W. Lopasic et al., Respondents, and John C. Dalfino et al., Respondents- Appellants. Calendar Date: October 21, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ. The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for appellants-respondents. Maguire Cardona, PC, Albany (Richard Maguire of counsel), for respondents-appellants. Thorn Gershon Tymann and Bonanni, LLP, Albany (Erin Mead of counsel), for respondent. Egan Jr., J.P. Cross appeals from an order of the Supreme Court (Weinstein, J.), entered June 12, 2019 in [*2]Albany County, which, among other things, granted a motion by defendants Natalie W. Lopasic and Northeast Eye Center for summary judgment dismissing the complaint against them. In 2010, plaintiff Kim M. Launt was diagnosed with pseudotumor cerebri (hereinafter PTC), a condition that causes chronically high intracranial pressure due to the production of excess cerebrospinal fluid (hereinafter CSF), causing headaches and vision problems. Launt initially sought treatment from a neurologist and ophthalmologist in the City of Binghamton, Broome County and, as part of said treatment, was also diagnosed with papilledema or swelling of the optic nerve due to intracranial pressure. Based on her symptoms, Launt sought medical consultations with two neurosurgeons, including defendant John C. Dalfino, who, at all relevant times, was employed by defendants Albany Medical College and Albany Medical Center (hereinafter collectively referred to as the AMC defendants). Dalfino presented Launt with various surgical options designed to drain excess CSF from her brain, including, as relevant here, the placement of a lumboperitoneal shunt (hereinafter LP shunt), which consists of a medical device being surgically inserted near the lumbar spine that drains excess CSF into the abdominal cavity, and the placement of a ventriculoperitoneal shunt (hereinafter VP shunt), which consists of a device being surgically inserted into the brain to drain excess CSF into the abdominal cavity. Based on Launt's concerns with respect to the invasiveness of the VP shunt procedure, she ultimately elected to pursue an LP shunt, which procedure Dalfino performed in January 2012. Following the insertion of the LP shunt, Launt continued to experience PTC symptoms of varying severity, including headaches, vision problems, nausea, vomiting and dizziness. Dalfino made numerous adjustments to the LP shunt valve and also performed multiple surgical revisions of the LP shunt, with varying success. In April 2013, Dalfino referred Launt to defendant Natalie W. Lopasic, an ophthalmologist employed by defendant Northeast Eye Center (hereinafter collectively referred to as the NEC defendants), for ophthalmological treatment, to evaluate her optic nerves and document whether papilledema was present. Launt treated with Lopasic from April 2013 through August 2014. According to Lopasic, Launt never presented with papilledema and her visual symptoms remained stable. Notwithstanding, Launt continued to suffer from symptoms of PTC and, as a result, she discontinued her treatment with Lopasic in August 2014 and her treatment with Dalfino in October 2014. Launt thereafter consulted with another neurologist who, in November 2014, diagnosed her with papilledema and, following consultation with another neurosurgeon, she underwent surgery to remove her LP shunt and insert a VP shunt in December 2014. According to Launt, with the exception of a singular VP shunt revision surgery in 2017, the VP shunt has effectively controlled her PTC symptoms. In August 2016, Launt and her spouse, derivatively, commenced this medical malpractice action against both the NEC defendants and the AMC defendants, alleging, among other things, that they failed to diagnose, treat and monitor Launt's PTC, brain and optic nerve swelling, intracranial pressure and otherwise were "careless, reckless and negligent," deviating from accepted standards of practice. The NEC defendants and the AMC defendants separately answered and, following joinder of issue, independently moved for summary judgment dismissing the complaint against them, which motions plaintiffs opposed. Supreme Court denied the AMC defendants' motion in its entirety, finding that [*3]material issues of fact existed with respect to whether Dalfino departed from the appropriate standard of care, but granted the motion by the NEC defendants, finding that the affidavit submitted by plaintiffs' expert ophthalmologist failed to establish that Lopasic erred in failing to diagnose Launt with papilledema. Plaintiffs appeal, and the AMC defendants cross-appeal. As the moving parties, it was the NEC defendants' burden to establish that they "did not deviate from the accepted standards of practice in treating [Launt] or, if [they] did so, that such deviation was not the proximate cause of [Launt]'s injuries" (Furman v Desimone, 180 AD3d 1310, 1311 [2020]). Upon establishment of a prima facie case, the burden shifts to plaintiffs "to come forward with proof that could establish a deviation from accepted medical practice and that such alleged deviation was the proximate cause of [Launt]'s injuries, so as to demonstrate the existence of a triable issue of fact" (Yerich v Bassett Healthcare Network, 176 AD3d 1359, 1361 [2019]; see Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]). In support of their motion, the NEC defendants submitted, among other things, the deposition testimony of Launt and Lopasic, an affidavit from Lopasic, and Launt's medical records. The evidence demonstrates that at Launt's initial consultation with Lopasic in April 2013, she presented with subjective complaints of, among other things, decreased peripheral vision in her right eye, pain behind both eyes, pressure in the back of her head and light sensitivity. Lopasic performed a full neuroophtalmological exam, including a full dilated eye exam, visual field testing and an "OTC" test to take images of the optic nerves. According to Lopasic, the objective testing that was performed established that the optic nerve in Launt's right eye appeared to be raised; however, "[t]he mild nasal elevation of the optic nerve" that she observed was normal and indicative only of pseudopapilledema, and that Launt had no swelling of the optic nerves nor any signs of papilledema. Lopasic did note that Launt's visual field testing showed constriction of Launt's peripheral vision; however, given that the results of the visual field testing were subjective and inconsistent over time as well as with the objective testing that she performed, she concluded that the results of these tests were unreliable and ruled out papilledema as a cause. Lopasic continued to treat and monitor Launt over the course of the ensuing 16 months, including conducting additional testing in line with the appropriate standard of care, and affirmed that the results of all the objective testing of Launt's optic nerves during such time were within the normal range, her intraocular pressure remained normal, her visual symptoms remained stable and she showed no signs of papilledema nor optic nerve swelling caused by intracranial and/or intraocular pressure. Accordingly, based on the evidence submitted, the NEC defendants met their prima facie burden of demonstrating that Lopasic did not depart from the accepted standard of care in treating Launt nor did Launt sustain any injury to her optic nerves or worsening of her condition based upon the treatment and care she received from these defendants (see Simpson v Edghill, 169 AD3d 737, 738 [2019]). In opposition to the motion, plaintiffs failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [2010]). Although plaintiffs submitted the affidavit of an expert ophthalmologist who opined that Lopasic deviated from the applicable standard of care by disregarding the subjective results of Launt's visual field tests and failing to create a treatment plan for papilledema, [*4]the expert provided no specific assertions indicating that the results of the visual field tests, in and of themselves, were indicative of papilledema, nor did he identify any other diagnosable condition. He further failed to address the fact that, at no point during Launt's course of treatment, did Lopasic ever observe any signs of papilledema or specifically diagnose her as suffering from same (see Lowe v Japal, 170 AD3d 701, 703 [2019]; Tsitrin v New York Community Hosp., 154 AD3d 994, 996 [2017]).[FN1] Lopasic, on the other hand, indicated that Launt's visual symptoms remained stable throughout her treatment and explained that she did not prepare a treatment plan for papilledema because Launt never showed signs of suffering from said diagnosis while under her treatment and care. Accordingly, we find that Supreme Court appropriately granted summary judgment dismissing the complaint against the NEC defendants. Turning to the AMC defendants' cross appeal, we are unpersuaded that Supreme Court erred in not, sua sponte, utilizing CPLR 3212 (g) to limit the contested issues of fact for trial. As relevant here, CPLR 3212 (g) provides that, "[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, . . . shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action." CPLR 3212 (g) is a seldom used procedural device contained within CPLR 3212 that serves alongside its more frequently used legal cousins — the motions for summary judgment and partial summary judgment. It can serve as a sort of consolation prize for the unsuccessful movant for summary judgment wherein the main motion is denied but a judicial finding of those facts not in dispute is achieved for potential later use at trial. Here, the AMC defendants did not request that Supreme Court make a CPLR 3212 (g) ruling in the event that their motion for summary judgment was denied, nor were they required to (see [*5]Oluwatayo v Dulinayan, 142 AD3d 113, 120 [2016]; E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599, 603 [1984]; compare Clause v Globe Metallurgical, Inc., 160 AD3d 1463, 1464 [2018]).[FN2] Supreme Court had complete discretion to undertake such an inquiry, sua sponte, and we decline to disturb its decision not to invoke CPLR 3212 (g). Although this Court may issue a de novo CPLR 3212 (g) ruling, our independent review of the record leads us to the conclusion that such an inquiry would be impracticable, and we decline the invitation to do so. To the extent not specifically addressed, plaintiffs' remaining contentions have been reviewed and found to be without merit. Mulvey, Aarons, Pritzker and Colangelo, JJ., concur. ORDERED that the order is affirmed, without costs. Footnotes Footnote 1: We reject the assertion by plaintiffs and plaintiffs' expert ophthalmologist that Launt's medical regards "clearly note[d] a diagnosis of papilledema" for which a treatment plan was necessary. Lopasic explained that she was consulted to evaluate Launt's optic nerves and look for changes or symptoms in her condition consistent with papilledema and, therefore, any notation in the medical records regarding said diagnosis was for purposes of insurance coverage and did not represent an independent diagnosis on her behalf, as Launt never presented with papilledema while under her care. Moreover, although Lopasic acknowledged that one of Launt's treating neurologists noted the presence of papilledema, she explained that the fundoscopic exam that the neurologist performed in this regard was insufficient to confirm a diagnosis of papilledema, as opposed to the battery of objective testing that she had performed. Footnote 2: The better practice for a party seeking the benefit of CPLR 3212 (g) would be to specifically request in the motion papers that such relief be granted, in the alternative, in the event that the motion for summary judgment is either denied or granted only in part (see Siegel, NY Prac, § 286 at 542 [6th ed 2020]; David D. Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3212:35).

2020-12-03 16:10:24.518671+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07257.htm

Gurecki v Gurecki (2020 NY Slip Op 07257) Gurecki v Gurecki 2020 NY Slip Op 07257 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529332 [*1]Stephen E. Gurecki, Respondent, v Richard A. Gurecki et al., Defendants, and Kenneth Sauer Jr. et al., Appellants. Calendar Date: October 13, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ. Goldberg Segalla LLP, Buffalo (Marc W. Brown of counsel), for appellants. Law Office of James F. Keefe, Cairo (David E. Woodin of David E. Woodin, LLC, Catskill, of counsel), for respondent. Pritzker, J. Appeal from an order of the Supreme Court (Fisher, J.), entered April 19, 2019 in Greene County, which denied a motion by defendants Kenneth Sauer Jr. and Bank of Greene County to dismiss the complaint against them. The instant appeal involves a mortgage foreclosure action between family members. In 1998, plaintiff sold real property, on which there is an automobile repair business, to his brother and sister-in-law, defendants Richard A. Gurecki and Coral J. Gurecki (hereinafter collectively referred to as the Gureckis). The details of the transaction are not clear, but it appears that, as part of the conveyance, the Gureckis executed a note to borrow $90,000, without interest, from plaintiff secured by a mortgage against the real property. The note, dated September 4, 1998, did not provide for periodic payments. Instead, it required payment in full on September 4, 2008; such payment was not made. On April 13, 2017, approximately 19 years after the mortgage was executed, it was recorded. Then, on May 11, 2017, the Gureckis sold the property to defendant Kenneth Sauer Jr., who executed a mortgage with defendant Bank of Greene County (hereinafter BGC). It appears from the record that the title insurance company did not pick up the Gureckis' mortgage, thus it remained an unsatisfied senior lien post-closing. It also appears from the record that, after the closing, certain funds were held in escrow by an attorney and were ultimately released, at least in part, to the Gureckis. On or about June 11, 2018, plaintiff commenced this foreclosure action against the Gureckis, Sauer and BGC. The complaint indicates that the Gureckis had made only two $250 payments, on April 25, 2016 and May 4, 2016, and demanded the remaining $89,500. Sauer and BGC (hereinafter collectively referred to as defendants) moved to dismiss the complaint against them as time-barred by the applicable six-year statute of limitations. Supreme Court denied the motion, finding that defendants lacked standing to make the motion and that, in any event, the action was timely commenced. Defendants appeal. Initially, we agree with defendants that Supreme Court erred in finding that they lacked standing to assert a statute of limitations defense against plaintiff (see U.S. Bank N.A. v Balderston, 163 AD3d 1482, 1483 [2018]; Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen, 134 AD3d 924, 925 [2015]), lv dismissed 27 NY3d 950 [2016]; Perry v Fries, 90 AD 484, 490-491 [1904]; see e.g. Bank of N.Y. Cent. Region v Cain, 78 AD2d 963, 963 [1980]). Turning to the merits, "[t]o dismiss [an action] pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" (Krog Corp. v Vanner Group, Inc., 158 AD3d 914, 915 [2018] [internal quotation marks and citations omitted]). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable" (Elia v Perla, 150 AD3d 962, 964 [2017] [internal quotation marks and citations omitted]). "As relevant here, the six-year statute of limitations applicable to a mortgage foreclosure action begins to run on the date on which the mortgagee is entitled to demand full payment of the loan" (McNeary v Charlebois, 169 AD3d 1295, 1296 [2019] [citations omitted]; see CPLR 213 [4]). Here, the statute of limitations can be extended by partial payments, when it is established "that there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder" (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521 [1976]; see McNeary v Charlebois, 169 AD3d at 1297). The statute of limitations can be renewed by "the written acknowledgement of a debt and a promise to pay starts" (Fleet Natl. Bank v Laquidara, Inc., 290 AD2d 930, 931 [2002], lv dismissed 98 NY2d 671 [2002]; see General Obligations Law § 17-101; Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d at 520-521). Defendants' motion established prima facie that the statute of limitations had run, as the entire debt became due on September 3, 2008. Plaintiff, however, did not seek to foreclose on the mortgage until June 2018, well beyond the six-year limitations period (see CPLR 213 [4]; U.S. Bank N.A. v Martin, 144 AD3d 891, 891-892 [2016]; see generally McNeary v Charlebois, 169 AD3d at 1296). To defeat defendants' prima facie showing, plaintiff relied on both the partial payment exception and an acknowledgement to restart the statute of limitations. As to the partial payments, plaintiff proffered an affidavit wherein he averred that the Gureckis had made payments, in varying amounts, on 14 occasions between September 2008 and May 2016. We note that this is in stark contrast to the complaint, wherein plaintiff alleged only two partial payments, both of which were made in 2016 after the statute of limitations had expired. As to the 12 partial payments that plaintiff claims were made prior to 2016, these are "mere naked payment[s] of money without anything to show on what account, or for what reason, the money was paid," and, thus, they are insufficient to raise an issue of fact as to whether the statute of limitations was tolled (Crow v Gleason, 141 NY 489, 493 [1894]; see Sudit v Eliav, 181 AD3d 955, 956-957 [2020]; McNeary v Charlebois, 169 AD3d at 1296-1297). However, plaintiff alleges that the two payments made by the Gureckis in 2016 were "accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder" (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d at 521; see McNeary v Charlebois, 169 AD3d at 1297). Specifically, plaintiff argues that emails between Marilyn Carreras — presumably the Gureckis' attorney in the sale of the subject property to Sauer — and Larry Gardner — plaintiff's attorney — establish that the Gureckis made two payments in 2016 and were promising to pay the remainder of their debt to plaintiff.[FN1] However, the tolling or revival effect of partial payments differs as between the payor — the Gureckis — and subsequent purchasers — defendants (see General Obligations Law § 17-107 [2]). To that end, as relevant here, a qualifying partial payment [FN2] that is made before the expiration of the statute of limitations will renew the statute of limitations against any subsequent purchaser (see General Obligations Law § 17-107 [2] [2d par]; Roth v Michelson, 55 NY2d 278, 282 n 2 [1982]). In contrast, a qualifying partial payment that is made after the expiration of the statute of limitations will only revive the statute of limitations as to a subsequent purchaser who did not give value or who had [*2]actual notice of the making of the payment (see General Obligations Law § 17-107 [2] [a]; [2d par]; Roth v Michelson, 55 NY2d at 282; Bergenfeld v Midas Collections, 38 AD2d 939, 940 [1972]; see generally 35 NY Prac, Mortgage Liens in New York § 18:6 [Sept. 2020 update]). Here, even assuming that the 2016 payments met the test set forth in Lew Morris Demolition Co. v Board of Educ. of City of N.Y. (40 NY2d at 521), at the time that they were made the statute of limitations had expired. Given that the record is clear that defendants are purchasers for value and plaintiff put forth no evidence that defendants had actual notice of the 2016 payments, the payments did not have the effect of reviving the statute of limitations as to defendants (see General Obligations Law § 17-107 [2]; see Roth v Michelson, 55 NY2d at 282; compare Bergenfeld v Midas Collections, 38 AD2d at 940). Finally, we turn to plaintiff's contention that Carreras' email was a written acknowledgement that revived the statute of limitations. "The writing, in order to constitute an acknowledgement, must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d at 521 [citations omitted]; see Maidman Family Parking, LP v Wallace Indus., Inc., 145 AD3d 1165, 1166 [2016]). As relevant here, pursuant to General Obligations Law § 17-105 (3) (a), a promise to pay a mortgage debt that revives the statute of limitations is effective against a subsequent purchaser who did not give value or who had actual notice of the making of the payment.[FN3] Accordingly, inasmuch as defendants purchased the property for value and plaintiff proffered no evidence that defendants had actual notice of the emails,[FN4] which are the alleged qualifying "writing[s]" (General Obligations Law § 17-101), they did not revive the statute of limitations as to defendants. Therefore, plaintiff has failed to raise a question of fact as to whether the statute of limitations was either extended or renewed, and, thus, defendants' motion for summary judgment is granted and the action is dismissed against defendants (see Elia v Perla, 150 AD3d at 965; Barry v Cadman Towers, Inc., 136 AD3d 951, 953 [2016], lv denied 28 NY3d 913 [2017]). In light of this determination, defendants' remaining contentions have been rendered academic. Egan Jr., J.P., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. ORDERED that the order is reversed, on the law, with costs, motion granted and complaint dismissed against defendants Kenneth Sauer Jr. and Bank of Greene County. Footnotes Footnote 1: Notably, Carreras references only the two 2016 payments having been made by the Gureckis, rather than the 14 now alleged by plaintiff. Footnote 2: A qualifying payment is one that is "accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder" (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d at 521; see McNeary v Charlebois, 169 AD3d at 1297). Footnote 3: Unlike General Obligations Law § 17-107, which relates to partial payments, General Obligations Law § 17-105 does not differentiate between an acknowledgement made prior to or after the expiration of the statute of limitations (see Roth v Michelson, 55 NY2d at 282 n 2; see also 35 NY Prac, Mortgage Liens in New York § 18:6). Footnote 4: The emails, of which defendants were not recipients, were not sent until after the closing.

2020-12-03 16:10:24.898605+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07256.htm

Gagnon v Village of Cooperstown, N.Y. (2020 NY Slip Op 07256) Gagnon v Village of Cooperstown, N.Y. 2020 NY Slip Op 07256 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529311 [*1]Sally A. Gagnon, Respondent, v Village of Cooperstown, New York, et al., Appellants. Calendar Date: October 14, 2020 Before: Garry, P.J., Egan Jr., Lynch, Clark and Colangelo, JJ. Johnson & Laws, LLC, Clifton Park (Loraine C. Jelinek of counsel), for appellants. Law Office of David G. Goldbas, Utica (Colin LaReaux of counsel), for respondent. Clark, J. Appeal from an order of the Supreme Court (Burns, J.), entered May 7, 2019 in Otsego County which partially denied defendants' motion for summary judgment dismissing the complaint. On October 7, 2016, plaintiff's adult daughter (hereinafter the daughter) filed a report with the Village of Cooperstown Police Department (hereinafter CPD) alleging that plaintiff had been withdrawing money from her account at NBT Bank without her knowledge or consent. Following an investigation into the daughter's allegations, the CPD sought and obtained a warrant for plaintiff's arrest. Plaintiff was subsequently arrested and arraigned in Otsego Town Court on the felony charge of grand larceny in the third degree and released on her own recognizance. Roughly three weeks later, on November 30, 2016, plaintiff presented to NBT Bank a power of attorney signed by the daughter in 2011, which authorized plaintiff to act as the daughter's attorney-in-fact in banking transactions, as well as other matters. The bank manager immediately contacted the CPD and provided copies of the power of attorney. On April 20, 2017, the Otsego Town Court dismissed the grand larceny charge against plaintiff. In January 2018, plaintiff commenced this action, asserting causes of action for false arrest and false imprisonment, malicious prosecution and negligence. Defendants — the Town of Otsego (hereinafter the Town) and the Village of Cooperstown (hereinafter the Village) — separately joined issue. Thereafter, prior to the completion of discovery, defendants jointly moved for summary judgment dismissing the complaint.[FN1] Supreme Court granted the motion to the extent of dismissing as time-barred the false arrest and false imprisonment claim and negligence claim, but denied the motion as to the malicious prosecution claim. Defendants appeal. Defendants contend that plaintiff's malicious prosecution claim should have been dismissed for failure to state a claim (see CPLR 3211 [a] [7]). In determining whether a plaintiff has stated a cause of action, we afford the complaint a liberal construction, accept the facts alleged as true, accord the plaintiff the benefit of every favorable inference and determine only whether the alleged facts fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87—88 [1994]; State of New York v Jeda Capital-Lenox, LLC, 176 AD3d 1443, 1445 [2019]). To state a claim for malicious prosecution, a plaintiff must allege that a criminal proceeding was commenced or continued by the defendant against the plaintiff, that the criminal proceeding was terminated in the plaintiff's favor, that the criminal proceeding was commenced or continued in the absence of probable cause and that the defendant acted with actual malice (see De Lourdes Torres v Jones, 26 NY3d 742, 760 [2016]; Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied 423 US 929 [1975]). Upon reviewing the complaint, we find that plaintiff sufficiently stated a cause of action for malicious prosecution. Thus, contrary to defendants' assertion, dismissal of the malicious prosecution claim on CPLR 3211 (a) (7) grounds is not warranted. We must next determine whether, as defendants contend, the malicious prosecution claim against the Town is barred by the doctrine of judicial immunity. Under the doctrine of judicial immunity, a judge is immune from civil liability for any acts that he or she performs in the exercise of his or her judicial function (see Mosher-Simons v County of Allegany, 99 NY2d 214, 219 [2002]; Best v State of New York, 116 AD3d 1198, 1199 [2014]; Salzano v Town of Poughkeepsie, 300 AD2d 716, 717 [2002]). Defendants correctly observe that plaintiff's malicious prosecution claim against the Town is premised solely upon the Town Justice signing the warrant authorizing plaintiff's arrest.[FN2] The record indisputably establishes that the Town Justice signed the arrest warrant in the exercise of his judicial function. Consequently, the doctrine of judicial immunity applies and Supreme Court should have dismissed the malicious prosecution claim against the Town on that basis (see Best v State of New York, 116 AD3d at 1199; Salzano v Town of Poughkeepsie, 300 AD2d at 717; Word v City of Mount Vernon, 65 AD2d 622, 622 [1978], lv denied 47 NY2d 706 [1979]). We now turn to whether the Village is entitled to summary judgment dismissing the malicious prosecution claim against it. As the proponents of the summary judgment motion, defendants "bore the burden of making a prima facie showing that plaintiff will be unable to establish at least one of the[] elements" of the malicious prosecution claim (James v Flynn, 132 AD3d 1214, 1215 [2015]; see Hoyt v City of New York, 284 AD2d 501, 502 [2001], lv denied 97 NY2d 603 [2001]). As noted above, those elements include (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) termination of the criminal proceeding in the plaintiff's favor, (3) the absence of probable cause for the criminal proceeding and (4) actual malice (see De Lourdes Torres v Jones, 26 NY3d at 760; Broughton v State of New York, 37 NY2d at 457). There is no dispute that a criminal proceeding was commenced against plaintiff here (see generally De Lourdes Torres v Jones, 26 NY3d at 760).[FN3] As for the second element, not all types of [*2]terminations will qualify as "favorable"; however, a termination, including a dismissal in the interest of justice, may be favorable to the plaintiff if it is "not inconsistent with her [or his] innocence" (Cantalino v Danner, 96 NY2d 391, 395-396 [2001]; see Smith-Hunter v Harvey, 95 NY2d 191, 198 [2000]). Here, the record merely discloses — by virtue of a certificate of disposition — that the grand larceny charge against plaintiff was dismissed on April 20, 2017. In the absence of any evidence that the termination was inconsistent with plaintiff's innocence, defendants have not made a prima facie showing that plaintiff will be unable to establish termination of the criminal proceeding in her favor (see Goldenberg v Capital One N.A., 186 AD3d 810, 812-813 [2020]; compare Martinez v City of Schenectady, 97 NY2d 78, 84-85 [2001]). Defendants further argue that plaintiff will be unable to establish the third and fourth elements — namely, the absence of probable cause and actual malice. To establish probable cause, defendants relied on the arrest warrant signed by the Town Justice, which gave rise to a presumption of probable cause (see Broughton v State of New York, 37 NY2d at 458; Mahoney v State of New York, 147 AD3d 1289, 1291 [2017], lv denied 30 NY3d 906 [2017]), as well as the underlying arrest warrant application and supporting documents. Included in the arrest warrant application was a sworn statement from the daughter, who attested that she "did not sign a power of attorney or give [plaintiff] permission" to withdraw money from her bank account. The warrant application also included an incident report narrative detailing the CPD's investigation into the daughter's allegations. As reflected in that narrative, the CPD confirmed and corroborated many aspects of the daughter's allegations by, among other things, obtaining video footage of plaintiff making withdrawals from the daughter's NBT Bank account, inquiring with the bank manager as to the existence of a power of attorney and confirming with the Social Security office that plaintiff was not a representative payee on the daughter's disability checks. Considering the foregoing, defendants amply satisfied their prima facie burden of establishing that the criminal proceeding was supported by probable cause (see Batten v City of New York, 133 AD3d 803, 805-806 [2015], lv denied 28 NY3d 902 [2016]). Further, upon consideration of the same proof, which shows that the CPD was acting upon the daughter's sworn statement and conducted a monthlong investigation into her allegations, defendants have made a prima facie showing that plaintiff will be unable to establish that the CPD acted with actual malice (see generally De Lourdes Torres v Jones, 26 NY3d at 761-762). The burden thus shifted to plaintiff to raise questions of fact on the elements of probable cause and actual malice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To that end, plaintiff asserts that the CPD investigation was flawed because the investigating officers were aware of the possibility that a power of attorney could exist, but nonetheless did not interview or otherwise inquire with her as to its existence. To succeed on this theory and overcome the presumption of probable cause arising from the valid arrest warrant, plaintiff has to demonstrate that the CPD's conduct deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures (see Gisondi v Town of [*3]Harrison, 72 NY2d 280, 285 [1988]; Lee v City of Mount Vernon, 49 NY2d 1041, 1043 [1980]; Harris v State of New York, 302 AD2d 716, 717 [2003]; Hernandez v State of New York, 228 AD2d 902, 904 [1996]). To be clear, "the mere failure to follow some leads does not amount to an egregious deviation from accepted practices," as the police are neither obligated nor expected to pursue every lead that may benefit the accused, even if they have the knowledge and ability to investigate such lead (Batten v City of New York, 133 AD3d at 806; see Gisondi v Town of Harrison, 72 NY2d at 285). In the instant case, defendants made their motion for summary judgment prior to the completion of discovery. Plaintiff therefore has not yet had an adequate opportunity to ascertain — through means such as deposing the investigating police officers — whether there was any deviation from acceptable police practices or an issue of fact in that regard. In other words, plaintiff's ability to raise a material question of fact on the issues of probable cause and actual malice was hindered by the lack of full and complete discovery. Accordingly, at this juncture, the Village is not entitled to summary judgment dismissing the malicious prosecution claim against it (see CPLR 3212 [f]; Blake v City of New York, 148 AD3d 1101, 1107-1108 [2017]). To the extent that we have not addressed any of defendants' arguments, they have been reviewed and found to be without merit. Garry, P.J., Egan Jr., Lynch and Colangelo, JJ., concur. ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied defendants' motion for summary judgment dismissing the malicious prosecution claim against defendant Town of Otsego; motion granted to said extent; and, as so modified, affirmed. Footnotes Footnote 1: Given that defendants answered the complaint, their motion was a CPLR 3212 motion for summary judgment, despite being based in part upon CPLR 3211 (a) grounds (see DelVecchio v Collins, 178 AD3d 1336, 1336 n [2019]). Footnote 2: Plaintiff has not contested defendants' argument in this regard. Instead, plaintiff asserts that liability should be predicated upon the actions of the Otsego County District Attorney, an employee of Otsego County. Neither Otsego County nor the Otsego County District Attorney is a party to this action. Footnote 3: Whether the criminal proceeding was maliciously continued against plaintiff is not at issue in this action. Indeed, neither the CPD nor the Village had the ability to seek termination of the criminal proceeding after it was commenced. Thus, to the extent that plaintiff takes issue with the amount of time it took for the criminal proceeding to be dismissed after she produced the power of attorney, any such claim should have been brought against Otsego County and/or the Otsego County District Attorney.

2020-12-03 16:10:25.245324+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07255.htm

Edw Drywall Constr., LLC v U.W. Marx, Inc. (2020 NY Slip Op 07255) Edw Drywall Constr., LLC v U.W. Marx, Inc. 2020 NY Slip Op 07255 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529276 [*1]Edw Drywall Construction, LLC, Respondent, v U.W. Marx, Inc., et al., Appellants, et al., Defendant. Calendar Date: October 13, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ. Mastropietro Law Group, PLLC, Saratoga Springs (John P. Mastropietro of counsel), for appellants. Couch White, LLP, Albany (Donald J. Hillmann of counsel), for respondent. Egan Jr., J.P. Appeal from an order of the Supreme Court (McNally Jr., J.), entered May 20, 2019 in Rensselaer County, which, among other things, granted plaintiff's cross motion for partial summary judgment on its first cause of action and for summary judgment on its second, fourth and fifth causes of action. On July 7, 2016, defendant U.W. Marx, Inc., a general contractor, entered into a subcontract for plaintiff to furnish and install sheetrock in connection with the renovation of a 126-unit apartment complex located in the Town of Liberty, Sullivan County. As part of the subcontract, plaintiff was required to provide U.W. Marx with certificates of insurance demonstrating that it had procured, as relevant here, commercial general liability insurance (hereinafter CGLI) naming, among others, U.W. Marx as an additional insured. Following receipt of plaintiff's insurance certificates, U.W. Marx discovered that plaintiff's CGLI did not provide coverage for bodily injury claims related to Labor Law §§ 240 and 241.[FN1] In an effort to avoid a dispute and/or delay on the project, on July 20, 2016, U.W. Marx agreed to pay, on plaintiff's behalf, the $52,678.03 premium associated with obtaining a replacement CGLI policy that provided coverage for bodily injury for Labor Law liability. In October 2016, the insurance carrier unilaterally cancelled this replacement policy for reasons unrelated to this case. As a result, U.W. Marx informed plaintiff that it could not remain on the job site without proper CGLI and demanded that it provide a current insurance certificate demonstrating that it had procured a policy providing for bodily injury coverage under the Labor Law.[FN2] Plaintiff did not thereafter obtain a compliant CGLI policy and, instead, again provided U.W. Marx with certificates of insurance for policies that expressly excluded coverage for Labor Law liability. With no resolution to the parties' insurance dispute forthcoming, U.W. Marx informed plaintiff that, given its continued failure to procure a CGLI policy that covered bodily injury under the Labor Law, it was hiring third-party subcontractors to complete plaintiff's scope of work under the subcontract. In February 2017, U.W. Marx provided plaintiff with a final recap and reconciliation, itemizing the associated costs and charges for the project, indicating that plaintiff owed it $7,415.92. Plaintiff thereafter commenced this action against, among others, U.W. Marx and its surety, defendant General Casualty Company of Wisconsin (hereinafter GCCW), alleging causes of action for, as relevant here, wrongful termination, breach of contract, mechanic's lien foreclosure and recovery against a surety bond.[FN3] GCCW answered and U.W. Marx separately answered and asserted a [*2]counterclaim for, among other things, breach of contract. Following joinder of issue, U.W. Marx and GCCW (hereinafter collectively referred to as defendants) moved for partial summary judgment on the issue of liability on U.W. Marx's breach of contract counterclaim and, correspondingly, for summary judgment dismissing the complaint against GCCW. Plaintiff opposed the motion and cross-moved for partial summary judgment on the issue of liability with respect to its first cause of action for wrongful termination and for summary judgment on its second cause of action for breach of contract, fourth cause of action to foreclose on its mechanic's lien and fifth cause of action for recovery against surety bond. Supreme Court denied defendants' motion and granted plaintiff's cross motion, determining that plaintiff did not breach the subcontract and, therefore, U.W. Marx wrongfully terminated plaintiff for failing to maintain adequate insurance coverage. Supreme Court also determined that the mechanic's lien that plaintiff filed was valid and, given that U.W. Marx filed a surety bond for the purpose of discharging said lien, plaintiff was also entitled to judgment against GCCW. Defendants appeal. On a motion for summary judgment, it is the moving party's burden to establish its prima facie entitlement to judgment as a matter of law by presenting sufficient evidence demonstrating the absence of any material questions of fact (see Voss v Netherlands Ins. Co., 22 NY3d 728, 734 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once a prima facie case has been established, the burden shifts to the party opposing the motion to demonstrate the existence of a material issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In order to establish a cause of action for breach of contract, "a party must establish the existence of a contract, the party's own performance under the contract, the other party's breach of its contractual obligations, and damages resulting from the breach" (Adirondack Classic Design, Inc. v Farrell, 182 AD3d 809, 811 [2020]). It is well settled that a contractual agreement "that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Matter of Olszewski v Cannon Point Assn., Inc., 148 AD3d 1306, 1309 [2017] [internal quotation marks and citations omitted]). The failure of a party to comply with a contractual insurance procurement provision constitutes a material breach of contract (see Kinney v Lisk Co., 76 NY2d 215, 219 [1990]; Spector v Cushman & Wakefield, Inc., 100 AD3d 575, 575 [2012]); however, "[w]hen the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment" (Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131 AD3d 740, 741-742 [2015] [internal quotation marks and citations omitted]). In support of their motion for partial summary judgment as to liability on the breach of contract counterclaim, defendants submitted, among other things, a copy of the subcontract between plaintiff and U.W. Marx, plaintiff's CGLI and umbrella insurance policies and the affidavit of U.W. Marx's director of operations. With respect to plaintiff's obligation to procure CGLI, section 13.1 of the subcontract provides that plaintiff, "at its sole cost and expense, shall maintain and keep in full force and effect" insurance coverage for CGLI, including certain minimum limits for "bodily injury" as stated in the endorsement contained in Exhibit B of the subcontract both "for itself and all additional insureds." Plaintiff procured a CGLI policy and provided insurance certificates to U.W. Marx; however, upon review, U.W. Marx discovered that plaintiff's policy excluded coverage for bodily injuries incurred under the Labor Law. Although U.W. Marx brought this discrepancy to plaintiff's attention, it ultimately agreed to purchase, on plaintiff's behalf, CGLI that provided coverage for bodily injuries resulting from [*3]Labor Law liability. In October 2016, the insurance carrier cancelled this policy and plaintiff thereafter refused to procure a replacement policy that included said coverage.[FN4] At his deposition, the director of operations for U.W. Marx testified that U.W. Marx considered obtaining "bodily injury" coverage to be synonymous with obtaining coverage for "Labor Law liability" such that it believed plaintiff was contractually required to both procure and maintain same.[FN5] In opposition to defendants' motion and in support of its cross motion for summary judgment, plaintiff submitted a copy of the subcontract and the affidavit of its project administrator. According to plaintiff's project administrator, inasmuch as the subcontract did not specifically reference coverage for Labor Law liability nor did it bar plaintiff from obtaining CGLI that specifically excluded coverage for same, plaintiff procured a policy that excluded bodily injury coverage for Labor Law liability since it believed that it was not contractually obligated to purchase same. The project administrator acknowledged, however, that liability for Labor Law injuries was specifically discussed during negotiations with U.W. Marx and that the responsibility for liability in this regard continued to shift as various drafts of the subcontract were exchanged between plaintiff and U.W. Marx. Ultimately, it is not clear from the four corners of the subcontract whether the requirement that plaintiff procure CGLI covering "bodily injury" encompassed the specific requirement that it procure bodily-injury coverage for Labor Law liability. Further, the fact that the subcontract did not preclude plaintiff from purchasing a CGLI policy that specifically excluded coverage for Labor Law liability is not controlling as to whether such coverage was required by the subcontract in the first instance. Thus, the subcontract is ambiguous with respect to the whether plaintiff was required to maintain CGLI that covered Labor Law liability. Moreover, upon review, there is insufficient extrinsic evidence in the record for us to discern from the parties' conduct whether such coverage was contemplated in the subcontract or whether U.W. Marx and plaintiff subsequently agreed to modify the terms of the subcontract to require same. Accordingly, Supreme Court erred in granting summary judgment in favor of plaintiff on its second cause of action for breach of contract, as a question of fact [*4]remains as to whether plaintiff was contractually required to procure and maintain coverage for Labor Law liability and, in turn, whether its failure to procure same constituted a breach of contract (see Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131 AD3d at 742; Prevost v One City Block LLC, 155 AD3d 531, 536 [2017]).[FN6] Finally, inasmuch as plaintiff's causes of action for wrongful termination, foreclosure of mechanic's lien and recovery against a surety bond all hinge on whether U.W. Marx had the contractual right to demand that plaintiff procure bodily injury coverage for Labor Law liability, we must correspondingly reverse Supreme Court's grant of partial summary judgment as to liability on plaintiff's first cause of action and its grant of summary judgment on its fourth and fifth causes of action. To the extent not specifically addressed, the parties' remaining contentions have been rendered academic or have been reviewed and found to be without merit. Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. ORDERED that the order is modified, on the law, with costs to defendants U.W. Marx, Inc. and General Casualty Company of Wisconsin, by reversing so much thereof as granted plaintiff's cross motion; cross motion denied; and, as so modified, affirmed. Footnotes Footnote 1: Plaintiff's policy did not exclude coverage for all bodily injuries, as it did provide coverage for injuries to passersby, visitors, tenants of the apartment complex and other third parties not otherwise specifically excluded. Footnote 2: U.W. Marx also demanded a refund of the $37,330.20 pro rata premium refund that plaintiff received following the cancellation of the policy by the insurance carrier, but plaintiff refused. Footnote 3: On March 22, 2018, plaintiff voluntarily discontinued the action against defendant Golden Park Apartments, LLC. Footnote 4: The insurance carrier cancelled the replacement policy because it determined that the project was partially funded by public monies thereby triggering a "municipal exclusion" within the policy that precluded coverage for such government sponsored projects. Footnote 5: In an October 16, 2016 email to plaintiff, the director of operations for U.W. Marx indicated his initial belief that he did not think that insurance coverage for Labor Law liability was required by the subcontract; however, at his examination before trial, he unequivocally testified that the initial assessment he made in that email was wrong. Footnote 6: To the extent that defendants also argue that plaintiff breached the subcontract by failing to obtain an adequate umbrella policy, they concede in their reply brief that the parties' modified the coverage limit on the umbrella policy and, therefore, we find any such argument to have been abandoned (see Matter of Agostini v Elia, 181 AD3d 1013, 1016 n [2020]).

2020-12-03 16:10:25.524255+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07262.htm

Bridge v Cozzy (2020 NY Slip Op 07262) Bridge v Cozzy 2020 NY Slip Op 07262 Decided on December 3, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 3, 2020 529941 [*1]Stephanie Bridge, Appellant, v James Cozzy III, Respondent. Calendar Date: October 13, 2020 Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ. Anthony A. Fazzone, Schenectady (John R. Seebold of Law Offices of John R. Seebold, PLLC, Schenectady, of counsel), for appellant. Law Offices of John Trop, Syracuse (Theresa Zehe of counsel), for respondent. Reynolds Fitzgerald, J. Appeal from an order of the Supreme Court (Versaci, J.), entered July 22, 2019 in Schenectady County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint. In November 2016, a structure fire occurred at a residential home owned by defendant, located in Schenectady County. At the time of the fire, plaintiff and defendant were in a romantic relationship and plaintiff was residing at defendant's residence. The parties had an argument on the night of the fire, and defendant left the residence to diffuse the situation. Plaintiff remained at the residence and was later rescued by emergency responders, who found her in the bathroom next to the master bedroom. Plaintiff sustained burns to her body and airway. Although a subsequent fire investigation concluded that the fire originated in the mattress located in the master bedroom, the cause of the fire remains unknown. Plaintiff commenced this action to recover damages for personal injuries sustained from the fire, alleging, as a sole cause of action, that defendant's negligence was the cause of the fire. During discovery, the parties were each deposed. As relevant here, defendant testified that, although the home was equipped with three smoke detectors, some years before the fire he had disconnected the one that was located in close proximity to the master bedroom, where the fire had started. Shortly after depositions were complete, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved (1) to amend the complaint to conform the pleadings to the proof adduced at defendant's deposition and (2) for partial summary judgment on the issue of liability. Supreme Court granted that part of plaintiff's cross motion as sought to amend the complaint, granted defendant's motion for summary judgment dismissing the complaint and denied that part of plaintiff's cross motion for partial summary judgment. Plaintiff appeals. Initially, as plaintiff concedes, Supreme Court correctly determined that defendant is entitled to summary judgment on the issue of causation of the fire. However, in granting the motion to amend the complaint, the court allowed plaintiff to change her theory of liability. Although this is generally not acceptable as a response to a summary judgment motion (seeScanlon v Stuyvesant Plaza, 195 AD2d 854, 855 [1993]), it is allowable in this instance as the court granted plaintiff's cross motion to conform and, as such, defacto amended the complaint to include said theory. Once the amended complaint is served, it will supersede "the original complaint and bec[o]me the only complaint in the case" (Schoenborn v Kinderhill Corp., 98 AD2d 831, 832 [1983]). Because the amended complaint has yet to be served, issue has not been joined and summary judgment in her favor is inappropriate (see CPLR 3212 [a]; Gold Medal Packing v Rubin, 6 AD3d 1084, 1085 [2004]). Thus, any decision regarding plaintiff's cross motion for partial summary judgment is premature. Plaintiff's remaining contentions have been reviewed and found to be lacking in merit. Finally, if the amended complaint has yet to be filed, plaintiff is directed to do so within 30 days of the date of this order. Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur. ORDERED that the order is affirmed, with costs.

2020-12-03 16:13:47.532451+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2020/2020-Ohio-5516.pdf

[Cite as In re L.S., 2020-Ohio-5516 .] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY In the Matter of: : Case No. 20CA3719 L.S. : DECISION AND JUDGMENT ENTRY Adjudicated Dependent Child : RELEASED 11/24/2020 ______________________________________________________________________ APPEARANCES: D.S. and C.S., Chillicothe, Ohio, pro se appellants. Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assisting Prosecuting Attorney, Chillicothe, Ohio, for appellee. ______________________________________________________________________ Hess, J. {¶1} D.S. (“Father”) and C.S. (“Mother”) (collectively, the “parents”) appeal from a judgment of the Ross County Court of Common Pleas, Juvenile Division in a dependency action regarding their child, L.S. After the parents stipulated that the child was dependent, the juvenile court adjudicated L.S. a dependent child and issued a dispositional order awarding temporary custody to non-relatives. A few months later, the court returned custody to Mother and closed the case. However, in January 2020, Mother filed a motion under Civ.R. 60(B) asking the court to vacate its prior orders. The parents now appeal from the judgment overruling that motion. {¶2} Initially, the parents contend that the juvenile court lacked jurisdiction to issue the adjudicatory and dispositional orders because it did not conduct a dispositional hearing within 90 days after the complaint was filed as required by R.C. 2151.35(B)(1), and the parents claim that they did not expressly waive that requirement. Any error the juvenile court made in proceeding on the dependency complaint after the Ross App. No. 20CA3719 2 deadline passed renders its resulting decisions voidable, not void. Because the parents could have argued that the court violated R.C. 2151.35(B)(1) in a direct appeal from the court’s dispositional order, res judicata bars them from raising the issue in this appeal. {¶3} The parents also assert that the juvenile court erred when it denied the January 2020 motion. Res judicata bars some of the arguments in the motion, and to the extent the motion was based on information previously outside of the record, it did not contain allegations of operative facts which would warrant relief under Civ.R. 60(B). Accordingly, the court did not err when it overruled the motion without a hearing. {¶4} Next, the parents maintain that the juvenile court erred when it adjudicated L.S. a dependent child because the court did not comply with Juv.R. 29 when it accepted the dependency stipulations, one of Mother’s former attorneys stipulated to dependency on her behalf under conditions to which she did not agree, and the stipulations were made under duress. Mother did not make the first or second claims in the January 2020 motion, and they are barred by res judicata. Mother made the third claim in her motion, but as previously indicated, the court properly overruled it. {¶5} Finally, the parents assert a September 19, 2018 shelter care order did not contain proper findings on what reasonable efforts the Agency made to prevent L.S.’s removal. Mother did not make this argument in the January 2020 motion, and res judicata bars the argument because it could have been raised in a direct appeal from the dispositional order. Accordingly, we overrule the assignments of error and affirm the juvenile court’s judgment. Ross App. No. 20CA3719 3 I. FACTS AND PROCEDURAL HISTORY {¶6} Mother and Father are the parents of L.S., and Father has three other children with A.S.—K.S., Ma.S., and Me.S. On September 5, 2018, a caseworker at South Central Ohio Job & Family Services, Children’s Division (the “Agency”) filed a sworn complaint alleging that L.S., age 5, was a dependent child. According to the complainant’s statement of facts, there was a pending criminal investigation regarding a report that Father had sexually abused K.S., and Ma.S. and Me.S. had reported ongoing domestic violence in the home which often occurred in the presence of L.S. The complaint requested a disposition of temporary custody of L.S. to the Agency or a suitable relative. Father’s other children were the subject of separate proceedings; appeals related to those proceedings are pending in Ross App. Nos. 20CA3709, 20CA3710, and 20CA3711. {¶7} Based on the information in the complaint, a magistrate issued an ex parte order granting the Agency temporary custody of L.S. The next day, the magistrate conducted a shelter care hearing at which the parents requested temporary placement with nonrelatives, T.S. and B.S. On September 19, 2018, the magistrate issued a shelter care order finding that the child was at “imminent risk,” that “there was no opportunity to provide preventive services,” that the Agency “made reasonable efforts to prevent the placement and removal of the child from the home or to make it possible for the child to remain in the home,” and that “continued residence of the child in or return to the home would be contrary to the child’s best interest and welfare.” The magistrate continued temporary custody with the Agency but ordered it to investigate possible placement with T.S. and B.S. Mother and Father requested findings of fact and Ross App. No. 20CA3719 4 conclusions of law, and Mother moved the court to set the shelter care order aside. The court overruled the requests and motion. In the meantime, the magistrate had placed the child in the temporary custody of T.S. and B.S. on the recommendation of the Agency, which had completed the ordered investigation. {¶8} In November 2018, the magistrate issued a continuance entry, signed by the parents and their attorneys, which stated that the parents “waived the time in this case with regard to adjudication and disposition.” In January 2019, the magistrate conducted an adjudicatory hearing at which the parties stipulated that the conditions in the parents’ home warranted a finding of dependency and that the family was in need of services when the case was filed. After the hearing, Mother’s counsel moved to withdraw, and the magistrate granted the motion and appointed new counsel. Based on the stipulation, the magistrate then adjudicated L.S. a dependent child, and the same day, the juvenile court issued an adjudicatory order that adopted the magistrate’s decision. Mother, acting pro se, filed requests for findings of fact and conclusions of law, filed objections to the magistrate’s adjudicatory decision, and moved the court to set the magistrate’s decision aside. Mother claimed former counsel had stipulated to dependency on her behalf on the condition that she receive two hour visits every Saturday, but she had told counsel that she would only consider a stipulation if she got unsupervised overnight visits every weekend starting on Friday evening and ending on Sunday evening. Subsequently, Mother’s new counsel moved to withdraw, the court granted the motion, Mother filed a pro se “notice of refusal of court appointed counsel,” and she represented herself during the remainder of the proceedings. Ross App. No. 20CA3719 5 {¶9} On March 25, 2019, Mother filed an “emergency motion to dismiss and vacate,” purportedly under Civ.R. 60(B)(3) and (B)(5). Among other things, Mother alleged that in sworn complaints, Agency caseworkers had knowingly made false statements, misrepresented facts, and omitted material information in order to obtain ex parte removal orders for the four children. Mother suggested ex parte removal was not warranted, claimed the Agency did not make reasonable efforts to prevent removal, and again asserted former counsel had stipulated to dependency under conditions to which she did not consent. {¶10} The juvenile court overruled Mother’s request for findings of fact and conclusions of law, objections, and motion to set aside the magistrate’s adjudicatory decision, and the court set the March 2019 motion to dismiss for hearing at the same time as the April 29, 2019 dispositional hearing. On April 30, 2019, the magistrate issued a dispositional decision that overruled the motion to dismiss and ordered that L.S. remain in the temporary custody of T.S. and B.S. The same day, the juvenile court issued a dispositional order that adopted the magistrate’s decision. Mother filed objections to the magistrate’s dispositional decision and moved to set it aside, asserting among other things that the magistrate had overruled the motion to dismiss without giving her an opportunity to present evidence in support of that motion during the April hearing. Mother also moved for a return of custody to her on the basis that she had secured separate housing from Father and had his permission to move to Virginia with L.S. {¶11} In June 2019, the court issued an entry stating that it had reviewed the transcript from the April 29, 2019 hearing and that it was “not clear” that Mother Ross App. No. 20CA3719 6 received “an adequate opportunity to address all matters pending for hearing” on that date. The court scheduled a hearing for July 23, 2019, “to consider the disposition in this case,” the motion to dismiss, and the motion to return. At the hearing, Mother testified about many of the allegations in her motion to dismiss. She also claimed appointed attorneys had engaged in fraud in the inducement because they “insisted Children Services would eventually terminate my parental rights unless I bow down to CPS and stipulate to a dependency.” At one point, Mother began to quote Civ.R. 60(B), and the court interrupted her and stated, “I’ve already overruled your 60B Motion, so I don’t want to hear that.” Mother said, “Okay,” and the court said, “Your 60B was overruled by separate entry so were [sic] not going to consider that.” However, prior to the end of the hearing, the court said, “Other than what you’ve stated while on the witness stand, do you have any other argument as why you [sic] should grant the motion to dismiss?” Mother said, “No. Just solely that they did not make reasonable efforts. They did not comply with statutory law.” {¶12} On July 24, 2019, the juvenile court issued an entry overruling Mother’s objections to and motion to set aside the magistrate’s dispositional decision and overruling the motion to dismiss. The court found that at the adjudicatory hearing, Mother “acknowledged to the Magistrate that she was stipulating to a finding of dependency,” and the court found that her “allegations of fraud, misrepresentation by [Agency] caseworkers are not credible.” The court issued a separate entry that granted the motion to return, placed L.S. in the legal custody of Mother, terminated protective services, and closed the case. Ross App. No. 20CA3719 7 {¶13} In January 2020, Mother filed a “motion to vacate” all judgments, orders, and proceedings in the case under Civ.R. 60(B)(3) and (B)(5). Mother alleged that the Agency, with the aid of a prosecutor, obtained ex parte removal orders for the children by giving the court false information, misrepresenting facts, and omitting material information. She also claimed that the Agency had repeatedly failed to give the court material information that could have significantly impacted its decisions. Mother alleged that the Agency’s investigation was insufficient to “determine the risk, safety, and/or well-being of the children,” so it did not have “sufficiently credible information to determine that the children were in immediate/imminent danger” or probable cause for the ex parte removal orders. In addition, Mother alleged that the Agency did not make reasonable efforts to prevent removal before it obtained the ex parte orders. She claimed an August 2019 administrative case review report from the Ohio Department of Job and Family Services (“ODJFS”) supported her motion. She submitted a redacted copy of the report which indicates that the purpose of the administrative review was to evaluate the Agency’s compliance with the Ohio Revised Code and Ohio Administrative Code and “to assess casework practice and service provision.” The report identified various issues with the Agency’s actions, including deficiencies regarding investigation activities, risk and safety assessments, and case planning. Mother also alleged that the Agency and its representatives had retaliated against the parents, and their dependency stipulations were made “under duress as a result of coercion and threat.” She claimed the parents “were told evidence doesn’t matter and they faced the threat that [the Agency] would terminate their parental rights if they didn’t stipulate to dependency.” Mother requested an evidentiary hearing on her motion. Ross App. No. 20CA3719 8 {¶14} On April 29, 2020, the juvenile court overruled Mother’s motion, finding res judicata barred the motion because it “essentially makes the same allegations” in the March 2019 motion, and Mother failed to appeal the decision overruling that motion. The court also found Mother had not established a meritorious defense. The court stated it was “clear” Mother and L.S. had been living with Father, who allegedly raped his then 11-year-old daughter, and the January and July 2019 hearing transcripts indicated that Mother knowingly and voluntarily stipulated to a finding of dependency. The court noted that the ODJFS report had “not been verified,” that the report was “highly redacted,” and that nothing in it indicated that “the judgment, order or proceeding in this case was without merit,” that Mother had a meritorious defense, or that Mother could prove fraud. The parents now appeal from the April 29, 2020 judgment. II. ASSIGNMENTS OF ERROR {¶15} The parents present the following assignments of error: Assignment of Error No.1 The trial court abused its discretion in overruling the Civ.R. 60(B) motion. Assignment of Error No. 2 The trial court erred in adjudicating L.S. a dependent child when Mother’s attorney stipulated to conditions that Mother did not agree to, and where the stipulations were procured by intimidation, threats, and coercion. Assignment of Error No. 3 The adjudication and disposition decisions of the trial court are void judgments, as the trial court did not possess authority or jurisdiction to enter judgement [sic]. Assignment of Error No. 4 The trial court erred by not making proper reasonable efforts findings at shelter care. Ross App. No. 20CA3719 9 For ease of discussion, we address the assignments of error in a different order. III. JURISDICTION {¶16} In the third assignment of error, the parents contend that the juvenile court’s adjudicatory and dispositional orders are void. The parents assert that pursuant to R.C. 2151.35(B)(1), the court had to dismiss the complaint without prejudice because the court did not conduct the dispositional hearing within 90 days after the complaint was filed. They claim that in In re K.M., 159 Ohio St.3d 544 , 2020-Ohio-995 , 152 N.E.3d 245 , the Supreme Court of Ohio held that the statute imposes a mandatory deadline and that noncompliance is fatal to the authority and jurisdiction of the juvenile court. The parents maintain that even though they signed the continuance entry stating that they waived the time for adjudication and disposition, they did not expressly waive the 90-day deadline, so all decisions issued after the deadline passed are void. {¶17} “The traditional rule long followed in Ohio is that a void judgment is one entered by a court lacking subject-matter jurisdiction over the case or personal jurisdiction over the parties.” State v. Hudson, ___ Ohio St.3d ___, 2020-Ohio-3849 , ___ N.E.3d ___, ¶ 11, citing State v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913 , ___ N.E.3d ___, ¶ 4. “When a case is within a court’s subject-matter jurisdiction and the parties are properly before the court, any error in the exercise of its jurisdiction renders the court’s judgment voidable, not void.” Id., citing Harper at ¶ 26. “In general, a voidable judgment may be set aside only if successfully challenged on direct appeal.” Id., citing Harper at ¶ 26. “Subject-matter jurisdiction is defined as a court’s power to hear and decide cases.” Fairland Assn. of Classroom Teachers, OEA/NEA v. Fairland Local School Bd. of Edn., 2017-Ohio-1098 , 87 N.E.3d 605 , ¶ 8 (4th Dist.). Ross App. No. 20CA3719 10 “Personal jurisdiction is ‘the power of a court to enter a valid judgment against an individual.’ ” Bohl v. Hauke, 180 Ohio App.3d 526 , 2009-Ohio-150 , 906 N.E.2d 450 , ¶ 10, quoting In re Shepherd, 4th Dist. Highland No. 00CA12, 2001 WL 802209 , *4, fn. 1 (Mar. 26, 2001). {¶18} The parents’ argument implicates the issue of subject-matter jurisdiction. Neither party raised this issue in the juvenile court, but “subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a case” and “can never be waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d 81 , 2004-Ohio- 1980, 806 N.E.2d 992 , ¶ 11. “ ‘ “The existence of the trial court’s subject- matter jurisdiction is a question of law that we review de novo.” ’ ” Martindale v. Martindale, 4th Dist. Athens No. 14CA30, 2016-Ohio-524 , ¶ 27, quoting Barber v. Williamson, 4th Dist. Ross No. 11CA3265, 2012-Ohio-4925 , ¶ 12, quoting Yazdani- Isfehani v. Yazdani-Isfehani, 170 Ohio App.3d 1 , 2006-Ohio-7105 , 865 N.E.2d 924 , ¶ 20 (4th Dist.). {¶19} R.C. 2151.23(A)(1) provides that the juvenile court “has exclusive original jurisdiction * * * [c]oncerning any child who on or about the date specified in the complaint * * * is alleged * * * to be a[n] * * * abused, neglected, or dependent child.” R.C. 2151.35(B)(1) states that in such cases, “[t]he dispositional hearing shall not be held more than ninety days after the date on which the complaint in the case was filed,” and if the hearing “is not held within the period of time required by this division, the court, on its own motion or the motion of any party or the guardian ad litem of the child, shall dismiss the complaint without prejudice.” In In re K.M., the Supreme Court of Ohio considered “whether R.C. 2151.35(B)(1) requires the dismissal of a case if a juvenile Ross App. No. 20CA3719 11 court fails to conduct a dispositional hearing within 90 days of the filing of a complaint alleging that a child is abused, neglected or dependent.” In re K.M., 159 Ohio St.3d 544 , 2020-Ohio-995 , 152 N.E.3d 245 , ¶ 1. The court held that it does, id. at ¶ 1, and given the explicit statutory language, “there can be no implicit waiver of the 90-day limit,” id. at ¶ 26. We recently explained that the court did not hold that the deadline is jurisdictional, that the statute does not clearly deprive a court of jurisdiction to hold a dispositional hearing after the deadline, and that the deadline may be expressly waived. In re K.M., 4th Dist. Highland Nos. 20CA4 & 20CA6, 2020-Ohio-4476 , ¶ 65-66. Thus, any error the juvenile court made in proceeding on the dependency complaint after the deadline passed in this case would render its resulting decisions voidable, not void. {¶20} “Res judicata bars relitigation of a matter that was raised or could have been raised on direct appeal when a final, appealable order was issued in accordance with the law at the time.” State v. Griffin, 138 Ohio St.3d 108 , 2013-Ohio-5481 , 4 N.E.3d 989 , ¶ 3. “An adjudication by a juvenile court that a child is * * * ‘dependent’ as defined in R.C. Chapter 2151, followed by an order of disposition under R.C. 2151.353(A), constitutes a ‘final order’ within the meaning of R.C. 2505.02.” In re A.B., 4th Dist. Washington No. 09CA17, 2009-Ohio-5733 , ¶ 8, citing In re Murray, 52 Ohio St.3d 155 , 556 N.E.2d 1169 (1990), syllabus. {¶21} Here, the juvenile court adjudicated L.S. a dependent child, and the court issued a R.C. 2151.353(A) dispositional order on April 30, 2019. The parents could have raised the claim that the juvenile court violated R.C. 2151.35(B)(1) in a direct appeal from that order, but neither parent timely appealed the dispositional order after the juvenile court overruled Mother’s objections to the magistrate’s dispositional Ross App. No. 20CA3719 12 decision. See generally App.R. 4(A)(1) (“a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry”); App.R. 4(B)(2) (if a party in a juvenile proceeding files timely and appropriate objections to a magistrate’s decision under Juv.R. 40(D)(3)(b), “the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving the last of these post-judgment filings”). Thus, res judicata bars the parents from raising the issue in this appeal, and we overrule the third assignment of error. IV. CIV.R. 60(B) MOTION {¶22} In the first assignment of error, the parents contend that the juvenile court abused its discretion when it overruled Mother’s January 2020 Civ.R. 60(B) motion. The parents assert that the juvenile court erred in concluding res judicata barred the motion because it made the same allegations as the March 2019 motion, and no appeal was taken from the decision overruling that motion. The parents claim res judicata does not apply because the court did not “allow proper, fair, and impartial litigation” of the March 2019 motion because it set the matter for hearing in July 2019 but then “refused to permit litigation” of the motion. The parents assert that even though the March 2019 motion and January 2020 motion “raised similar allegations of operative facts,” the January 2020 motion “raised substantive issues which the trial court had not previously considered.” The parents also suggest that the court erred by overruling the January 2020 motion without a hearing because it contained allegations of operative facts which, if true, would warrant relief under Civ.R. 60(B). Ross App. No. 20CA3719 13 {¶23} To the extent Mother challenges the denial of the January 2020 motion, we review the juvenile court’s decision for an abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 , 20, 520 N.E.2d 564 (1988). “Abuse of discretion” means “an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375 , 2008-Ohio-4493 , 894 N.E.2d 671 , ¶ 23. Father did not join the January 2020 motion, and to the extent he challenges the denial of it, he has forfeited all but plain error review, i.e., he must prove the court made an obvious error that affected his substantial rights, State v. Rogers, 143 Ohio St.3d 385 , 2015-Ohio-2459 , 38 N.E.3d 860 , ¶ 22, and if he does, we may correct the error subject to the Supreme Court of Ohio’s instructions that in civil cases, “the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, * * * seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116 , 679 N.E.2d 1099 (1997), syllabus. {¶24} Under Civ.R. 60(B), “[o]n motion and upon such terms as are just, the court may relieve a party * * * from a final judgment” under certain circumstances. A party moving for relief from judgment under Civ.R. 60(B) bears the burden to show that he or she is entitled to a hearing on the motion. Struckman v. Bd. of Edn. of Teays Valley Local School Dist., 2019-Ohio-115 , 128 N.E.3d 709 , ¶ 20 (4th Dist.). If the motion “ ‘ contains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these facts before it rules on the motion.’ ” Coulson v. Coulson, 5 Ohio St.3d 12 , 16, 448 N.E.2d Ross App. No. 20CA3719 14 809 (1983), quoting Adomeit v. Baltimore, 39 Ohio App.2d 97 , 105, 316 N.E.2d 469 (8th Dist.1974). We have explained: To be entitled to a hearing, a movant must present operative facts to show all three of the following circumstances: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. Struckman at ¶ 21, quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 , 351 N.E.2d 113 (1976), paragraph two of the syllabus. “[I]f a Civ.R. 60(B) motion raises issues that the movant could have challenged on direct appeal, then the doctrine of res judicata prevents the movant from employing Civ.R. 60(B) as a means to set aside the court’s judgment.” Sydnor v. Qualls, 2016-Ohio-8410 , 78 N.E.3d 181 , ¶ 29 (4th Dist.). {¶25} Res judicata bars some of the arguments in the January 2020 motion because they could have been made in a direct appeal from the court’s decisions regarding the March 2019 motion. Mother’s arguments that the Agency obtained ex parte removal orders without telling the court that K.S. had been living outside the home with Father’s consent for almost three months prior to her removal, that Me.S. and Ma.S. had been living in the home with the Agency’s permission prior to their removal, and that the Agency knowingly allowed L.S. to remain in the home after the removal of her half-siblings are similar to arguments in the March 2019 motion. In addition, Mother’s arguments that the Agency lacked probable cause for the ex parte orders and did not make reasonable efforts to prevent removal are similar to arguments made in Ross App. No. 20CA3719 15 the March 2019 motion and at other times during the proceedings. The January 2020 motion repeated a claim Mother made during the July 2019 hearing that the Agency did not have knowledge of L.S.’s current condition when it obtained the ex parte order for her removal, and the motion repackaged her testimony at the hearing about her fraudulently induced dependency stipulation as a claim that her stipulation was made under duress. See generally State v. Ervin, 4th Dist. Highland No. 19CA7, 2019-Ohio- 4708, ¶ 17 (res judicata implicitly bars repackaging evidence or issues that were or could have been raised on direct appeal). The contention that res judicata does not apply because the juvenile court halted Mother’s testimony about the March 2019 motion during the July 2019 hearing is not well-taken. Although the court restricted Mother’s testimony at one point, she had already testified at length about claims made in her motion, and before the end of the hearing, the court gave her the opportunity to make any other arguments she had regarding the motion. {¶26} To the extent the January 2020 motion was based on information not previously in the record, i.e., the August 2019 report and information that Father also supposedly stipulated to dependency under duress, the parents have not shown that the motion alleged operative facts showing that Mother had a meritorious defense to present if relief was granted. “ ‘ “[A] proffered defense is meritorious if it is not a sham and when, if true, it states a defense in part, or in whole, to the claims for relief set forth in the complaint.” ’ ” Detty v. Yates, 4th Dist. Ross No. 13CA3390, 2014-Ohio-1935 , ¶ 24, quoting Spaulding-Buescher v. Skaggs Masonry, Inc., 4th Dist. Hocking No. 08CA1, 2008-Ohio-6272 , ¶ 10, quoting Amzee Corp. v. Comerica Bank-Midwest, 10th Dist. Franklin No. 01AP-465, 2002-Ohio-3084 , ¶ 20. “ ‘The movant’s burden is to allege Ross App. No. 20CA3719 16 operative facts that would create a defense. The movant need not conclusively establish the defense at this stage.’ ” Id., quoting French v. Taylor, 4th Dist. Lawrence No. 01CA15, 2002 WL 10544 , *3 (Jan. 2, 2002). {¶27} In their appellate brief, the parents suggest that they have a defense to the dependency claim because parents have fundamental liberty interests which are protected by the constitutional right to due process. The parents also assert that the Agency and a prosecutor retaliated against them on “numerous occasions” for asserting their parental rights and that the parents have “legitimate concerns” that the “negative” and “unlawful” judgments in this case will be used to retaliate against them in the future. The parents’ liberty interests and the alleged retaliation are not a defense to the claim that L.S. was a dependent child because L.S.’s condition or environment was such as to warrant the state, in the interest of the child, in assuming guardianship. The parents also claim that the Agency used “unsubstantiated allegations, from a 2017 CPS case, to bolster the complaint used to obtain the ex parte order for L.S.’s removal.” However, Mother made the claim about the use of these “unsubstantiated allegations” in the March 2019 motion, not the January 2020 motion. {¶28} The parents’ appellate brief includes a section on “allegations of operative facts” which appear to relate to the second requirement for Civ.R. 60(B) relief, i.e., entitlement to relief under one of the grounds in Civ.R. 60(B)(1) through (5). To the extent the parents intended to also argue that these allegations create a defense to the dependency claim, the argument is not well-taken. Some of the allegations were not in the January 2020 motion, such as arguments that the Agency knowingly ignored evidence (location data, text messages, and audio recordings), “still has not interviewed Ross App. No. 20CA3719 17 any of the individuals who have information about the sexual abuse allegation being false,” has evidence that the sexual abuse allegation is false, and refused safety plan options offered by Mother. Some of the parents’ allegations are based on the 2019 ODJFS report, but as the juvenile court indicated, the redacted report does not contain operative facts that would create a defense to the dependency claim. The parents’ general allegations that the January 2020 motion raised questions or concerns about the veracity of the complaint and statement of facts used to obtain the ex parte removal order for L.S., the adequacy of the Agency’s investigation, the danger to L.S. at the time of her removal, and whether this proceeding was “initiated fraudulently, by misrepresentation and misconduct of a judicial officer and adverse party” are not operative facts that would create a defense to the dependency claim. {¶29} The decision to overrule the January 2020 motion without a hearing was not unreasonable, arbitrary, or unconscionable. The juvenile court did not abuse its discretion, let alone commit plain error, when it overruled the motion. Accordingly, we overrule the first assignment of error. V. ADJUDICATORY ORDER {¶30} In the second assignment of error, the parents contend that the juvenile court erred when it adjudicated L.S. a dependent child. They claim the court violated Juv.R. 29(D) when it accepted the dependency stipulations because it did not personally address them to ensure the stipulations were made voluntarily with an understanding of the nature of the allegations, consequences of their admissions, and rights being waived. Mother did not make this argument in the January 2020 motion, and the argument is barred by res judicata because the parents could have raised it in a Ross App. No. 20CA3719 18 direct appeal from the court’s dispositional order. The parents also assert that their stipulations were involuntary because they “were threatened with [the Agency] terminating their parental rights if they did not stipulate to dependency.” But as we explained in the previous section, Mother raised this issue in her January 2020 motion, which the juvenile court properly overruled. Finally, the parents assert that when one of Mother’s former attorneys entered the stipulation on her behalf, the attorney did so under conditions “that Mother was not aware of and did not agree to.” This argument is barred by res judicata because Mother made it in objections to the magistrate’s adjudicatory decision, which the juvenile court overruled, and the issue could have been raised in a direct appeal from the court’s dispositional order. Accordingly, we overrule the second assignment of error. VI. SHELTER CARE ORDER {¶31} In the fourth assignment of error, the parents assert that the September 19, 2018 shelter care order did not contain proper findings on what reasonable efforts the Agency made to prevent the child’s removal. Mother did not make this argument in the January 2020 motion, and it is barred by res judicata because the parents could have raised the issue in a direct appeal from the court’s dispositional order. Therefore, we overrule the fourth assignment of error. In doing so, we need not address arguments the parents made under this assignment of error that relate to the merits of the ex parte removal order because they are beyond the scope of the assigned error. See State v. Nguyen, 4th Dist. Athens No. 14CA42, 2015-Ohio-4414 , ¶ 41 (an appellate court reviews “assignments of error and not mere arguments”). Ross App. No. 20CA3719 19 VII. CONCLUSION {¶32} Having overruled the assignments of error, we affirm the juvenile court’s judgment. JUDGMENT AFFIRMED. Ross App. No. 20CA3719 20 JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas, Juvenile Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Abele, J.: Concur in Judgment and Opinion. For the Court BY: ________________________________ Michael D. Hess, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

2020-12-03 16:13:48.933959+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2020/2020-Ohio-5517.pdf

[Cite as Dewine v. State Farm Ins. Co., 2020-Ohio-5517 .] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY Matthew Dewine, : Case No. 20CA3903 Plaintiff-Appellant, : v. : DECISION AND JUDGMENT ENTRY State Farm Insurance Company, et al., : : RELEASED 11/23/2020 Defendants-Appellees. : APPEARANCES: Robert M. Johnson and Jeremy M. Burnside, Burnside Law, LLC, Portsmouth, Ohio, for appellant. James L. Mann, Circleville, Ohio, for appellee. Hess, J. {¶1} Matthew Dewine appeals the trial court’s decision granting summary judgment in favor of Bryan Dewine on the ground that Matthew Dewine’s action is barred by the statute of limitations. Matthew argues that the trial court erred because it failed to toll the statute of limitations during the time that Bryan was absent from the state of Ohio as required by R.C. 2305.15(A). {¶2} We find that the tolling provision in R.C. 2305.15(A) applies to Bryan’s absence from Ohio. The plain language of the statute provides that the time of Bryan’s absence from Ohio “shall not be computed as any part of a period within which the action must be brought.” Bryan left Ohio and moved to Nevada because a woman he was dating lived there. Eventually he married her and found a job. Bryan was not engaged in commerce so as to implicate the Commerce Clause. Because the cause of action accrued Scioto App. No. 20CA3903 2 on April 3, 2016, Bryan was absent from Ohio from June 18, 2016 to August 8, 2018, and the lawsuit was filed on September 11, 2018, it was filed within the two-year statute of limitations of R.C. 2305.10. We sustain Matthew Dewine’s assignment of error and reverse the trial court’s judgment. I. PROCEDURAL HISTORY {¶3} On September 11, 2018, Matthew Dewine filed a complaint against his father Bryan Dewine and State Farm Insurance Company asserting a negligence claim against Bryan and an uninsured/underinsured and medical payments benefit claim against State Farm arising from a motor vehicle accident that occurred on April 3, 2016. Matthew alleged that Bryan negligently failed to maintain reasonable control of his vehicle and it ran off the roadway and collided with a guardrail, causing injuries to Matthew, a passenger in the vehicle. Matthew voluntarily dismissed his claim against State Farm and the case proceeded solely against Bryan. {¶4} Bryan filed a motion for summary judgment, arguing that the two-year statute of limitations in R.C. 2305.10 governing personal injury claims barred Matthew’s claim, which was filed approximately two years and five months after the accident. After the April 3, 2016 accident, Bryan left Ohio on June 18, 2016 and moved to Nevada, where he resided until he returned to Ohio on August 8, 2018. Bryan argued that the tolling provisions of R.C. 2305.15(A), which excludes the time period he was absent from Ohio from the statute of limitation calculation, was unconstitutional as applied to him. He argued that the United States Supreme Court examined Ohio’s tolling provision in R.C. 2305.15(A) in Bendix, infra, and held that it violated the Commerce Clause of the United States Constitution by placing an impermissible burden on out-of-state corporations. The Scioto App. No. 20CA3903 3 effect of Ohio’s tolling provision was to make an out-of-state corporation subject to suit in Ohio in perpetuity while an Ohio corporation is not. The Supreme Court held that to gain the protections of the statute of limitations, an out-of-state corporation would have to appoint a resident agent for service of process in Ohio and subject itself to the Ohio courts’ general jurisdiction – a burden unjustified where Ohio’s long-arm statute permits service on the foreign corporation. Bryan argued that the Bendix holding was extended beyond out-of-state corporations to out-of-state residents in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 , 115 S.Ct. 1745 , 131 L.Ed.2d 820 (1995) and was further extended to Ohio residents who leave Ohio for employment in another state by Tesar v. Hallas, 738 F.Supp. 240 (N.D. Ohio 1990) (holding that a defamation action against an Ohio reporter who moved to Pennsylvania for employment was barred by the statute of limitations because the tolling provision in R.C. 2305.15(A) was unconstitutional as applied). Bryan argued that because he moved from Ohio to Nevada to get married and find other employment, the application of R.C. 2305.15(A) to toll the statute of limitations against him is similarly unconstitutional as applied. {¶5} Matthew opposed the motion and argued that the tolling provision in R.C. 2305.15(A) applies to Ohio residents who leave the state for non-business reasons, citing Johnson v. Rhodes, 89 Ohio St.3d 540 , 2000-Ohio-235 , 733 N.E.2d 1132 . Because Bryan left the state to get married – not for business reasons, Matthew argued that the tolling provision did not violate the Commerce Clause in this instance. Matthew also cited a more recent decision by the Court of Appeals for the Sixth Circuit in which an Ohio doctor allegedly committed malpractice then left Ohio to retire in Florida. See Garber v. Menendez, 888 F.3d 839 (6th Cir. 2018). The Sixth Circuit held that the tolling provision Scioto App. No. 20CA3903 4 of R.C. 2305.15(A) as applied to Dr. Menendez, “does not impose a cost on a traditional interstate business transaction” and “does not lead to favoritism toward in-state firms over out-of-state ones.” Id. at 846. The Sixth Circuit reversed the district court’s decision holding the statute unconstitutional as applied to Dr. Menendez and instead held that the tolling provision applied to the time he was absent from Ohio. {¶6} Here, the trial court reviewed the case law and found three general scenarios: (1) the defendant is not an Ohio resident at the time the cause accrued and left the state – in these cases the statute is not tolled; (2) the defendant is an Ohio resident at the time the cause accrued and then leaves the state indefinitely to take employment – in these cases the statute is not tolled; and (3) the defendant is an Ohio resident at the time the cause accrued and temporarily leaves the state – in these cases the statute is tolled for the time the resident is absent from the state. The trial court found that the key issue in each scenario is intent, “where a person leaves and has no intent to return, Ohio law says tolling does not apply.” Because Bryan left Ohio and went to Nevada to marry, live, work, obtain a driver’s license, and become a Nevada resident, the trial court found that there was no evidence that he had the intention of returning to Ohio. Therefore, the trial court held that the tolling provisions of R.C. 2305.15(A) were inapplicable to Bryan, granted him summary judgment, and dismissed Matthew’s complaint as barred by the statute of limitations. II. ASSIGNMENT OF ERROR {¶7} Matthew assigns the following error for our review: The Trial Court erred in granting summary judgment in favor of Appellee Bryan Dewine because it failed to adhere to Section 2305.15 of the Ohio Revised Code. Scioto App. No. 20CA3903 5 III. LAW AND ANALYSIS {¶8} Matthew contends that the trial court erred when it failed to apply the tolling provision of R.C. 2305.15(A) to the time Bryan was absent from Ohio. He argues that the plain language of the statute is unambiguous and provides, “if the person departs from the state * * * the time of the person’s absence or concealment shall not be computed as any part of a period within which the action must be brought.” Matthew argues that the trial court did not address the Sixth Circuit’s decision in Garber, supra, which is the highest federal authority on the matter. Matthew also argues that the trial court improperly added “intent” as an element to R.C. 2305.15 even though there is no distinction in the statute between absences “intended” to be permanent and those “intended” to be temporary. {¶9} Bryan takes a cautiously critical view of the Sixth Circuit’s analysis in Garber, pointing to the Court’s failure to include Reynoldsville Casket, supra, in its analysis and urges us to affirm the trial court’s judgment under federal law as set forth in Bendix, Reynoldsville Casket, and Tesar. A. Standard of Review {¶10} We review the trial court's decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51 , 2011-Ohio-4674 , 955 N.E.2d 954 , ¶ 12. Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long–Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464 , ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126 , ¶ 16. Scioto App. No. 20CA3903 6 {¶11} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68 , 2010-Ohio-6279 , 941 N.E.2d 1187 , ¶ 15. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280 , 292–293, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher at 293, 662 N.E.2d 264 . Moreover, the trial court may consider evidence not expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-Ohio-3150 , ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 WL 119247 , *4 (Aug. 8, 1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth specific facts to show that there is a genuine issue for trial. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E); Am. Express Bank, FSB v. Olsman, 2018-Ohio-481 , 105 N.E.3d 369 , ¶ 10-11 (4th Dist.). Scioto App. No. 20CA3903 7 B. Legal Analysis {¶12} Personal injury actions are governed by a two-year statute of limitations. R.C. 2305.10. Unless the statute is tolled, Matthew’s action is barred by the applicable statute of limitations. Matthew argues that the tolling provision in R.C. 2305.15(A) applies and that his action is timely. That provision states, in relevant part: R.C. 2305.15 Saving clause; time tolled during imprisonment (A) When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought. {¶13} Historically, the tolling provision in R.C. 2305.15 applied to persons who were never residents of Ohio and persons who were residents at the time of the event giving rise to the cause of action. Seeley v. Expert, Inc., 26 Ohio St.2d 61 , 269 N.E.2d 121 (1971) citing Meerison v. Groschner, 153 Ohio St 301, 91 N.E.2d 680 (1950) and Chamberlain v. Lowe, 252 F.2d 563 (6th Cir. 1958). The tolling provision also applied regardless of whether the nonresident was amenable to process under the long-arm statute or some other method. Id. at 69-70. [A] majority of the states, with comparable ‘savings clause’ statutes, have taken the view that the statute of limitations is not tolled under circumstances of amenability to process. Their position presents a very persuasive argument for change in the existing Ohio law in such respect. We conclude, however, that a change of the law by court ‘interpretation’ at this time would be violative of the basic rules of statutory interpretation. While the developments of the now accepted principles of substituted service under nonresident (and concealed) motorists statutes, and the advent of the ‘long-arm’ statutes may have eliminated much of the need for a ‘savings clause,’ it must be recognized that a court, in interpreting a Scioto App. No. 20CA3903 8 legislative enactment, may not simply rewrite it on the basis that it is thereby improving the law. Id. at 71. {¶14} The tolling provision does not contain an exception for temporary absences from the state – the statute applies equally to both permanent and temporary absences. Wetzel v. Weyant, 41 Ohio St.2d 135 , 323 N.E.2d 711 (1975) (the tolling provision applied where defendant was absent from Ohio for several weeks over the course of several years to vacation in Wisconsin, Michigan, and Florida); Johnson v. Rhodes, 89 Ohio St.3d 540 , 2000-Ohio-235 , 733 N.E.2d 1132 (Cook, J., concurring opinion, “R.C. 2305.15 does not distinguish between the ‘types’ of absences, and continued use of the word ‘temporary’ could be read to limit the application of the tolling statute.” (Emphasis sic.)). {¶15} The tolling provision in R.C. 2305.15(A) was held unconstitutional as applied in Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 , 108 S.Ct. 2218 , 100 L.Ed.2d 896 (1988). Bendix involved a contract dispute between Bendix, a Delaware corporation with its principal place of business in Ohio, and Midwesco, an Illinois corporation with its principal place of business in Illinois. A four-year statute of limitations governed the dispute but Bendix argued it was tolled by R.C. 2305.15(A). Midwesco argued that the tolling provision violated the Commerce Clause and the Due Process Clause of the Fourteenth Amendment. The United States District Court for the Northern District of Ohio dismissed the action, finding that the tolling statute impermissibly burdened interstate commerce. The Court of Appeals for the Sixth District affirmed because “it required a foreign corporation to choose between ‘ “exposing itself to personal jurisdiction in [state] courts by complying with the tolling statute, or, by refusing to comply, Scioto App. No. 20CA3903 9 to remain liable in perpetuity for all lawsuits containing state causes of action filed against it in [the State].” ’ ” (Brackets sic.) Bendix at 890. {¶16} The United States Supreme Court found that the tolling provision subjected out-of-state corporations to a significant burden: The Ohio statutory scheme thus forces a foreign corporation to choose between exposure to the general jurisdiction of Ohio courts or forfeiture of the limitations defense, remaining subject to suit in Ohio in perpetuity. Requiring a foreign corporation to appoint an agent for service in all cases and to defend itself with reference to all transactions, including those in which it did not have the minimum contacts necessary for supporting personal jurisdiction, is a significant burden. Bendix Autolite Corp. at 893. Next, the Court weighed, “the State’s putative interests against the interstate restraints to determine if the burden imposed is an unreasonable one.” Id. at 891 . The Court concluded that the burden was unreasonable: The ability to execute service of process on foreign corporations and entities is an important factor to consider in assessing the local interest in subjecting out-of-state entities to requirements more onerous than those imposed on domestic parties. It is true that serving foreign corporate defendants may be more arduous than serving domestic corporations or foreign corporations with a designated agent for service, and we have held for equal protection purposes that a State rationally may make adjustments for this difference by curtailing limitations protection for absent foreign corporations. Nevertheless, state interests that are legitimate for equal protection or due process purposes may be insufficient to withstand Commerce Clause scrutiny. In the particular case before us, the Ohio tolling statute must fall under the Commerce Clause. Ohio cannot justify its statute as a means of protecting its residents from corporations who become liable for acts done within the State but later withdraw from the jurisdiction, for it is conceded by all parties that the Ohio long-arm statute would have permitted service on Midwesco throughout the period of limitations. The Ohio statute of limitations is tolled only for those foreign corporations that do not subject themselves to the general jurisdiction of Ohio courts. In this manner the Ohio statute imposes a greater burden on out-of-state companies than it does on Ohio companies, subjecting the activities of foreign and domestic corporations to inconsistent regulations. Scioto App. No. 20CA3903 10 Bendix Autolite Corp. at 893–94. {¶17} In Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 , 115 St.Ct. 1745, 131 L.Ed.2d 820 (1995), the United States Supreme Court held that its decision in Bendix applied to pre-Bendix tort claims. It reversed the Ohio Supreme Court’s decision that held that Bendix does not apply retroactively to bar claims in state courts which had accrued before the Bendix decision issued. See Hyde v. Reynoldsville Casket Co., 68 Ohio St.3d 240 , 1994-Ohio-67 , 626 N.E.2d 75 (1994). Hyde sued both the Reynoldsville Casket, a foreign corporation, and John Blosh, an employee of Reynoldsville Casket who was involved in a collision with Hyde while in the scope of his employment. The complaint alleged that Blosh had negligently caused Hyde's injuries and contended that because, “ ‘Blosh's actions were in the scope and course of his employment with the [Reynoldsville] Casket Co.,’ RCC was also liable for those injuries.” (Brackets sic.) Hyde v. Reynoldsville Casket Co., 68 Ohio St.3d 240 , 241, 1994-Ohio-67 , 626 N.E.2d 75 (1994). The trial court dismissed Hyde’s claims as barred by the statute of limitations and the Eleventh District Court of Appeals affirmed the dismissal. The Court of Appeals applied Bendix to Hyde’s claims, finding no distinction between the facts in Bendix and those before it. In discussing employee Blosh, the appellate court found, “Blosh, as an employee of Reynoldsville Casket Co., was involved in interstate commerce. Moreover, as an individual, he did not even have the option of registering with the Secretary of State. An individual engaged in interstate commerce should be afforded the same protection and defenses as a corporation.” (Citations omitted.) Hyde v. Reynoldsville Casket Co., 11th Dist. Ashtabula No. 91-A-1660, 1992 WL 192332 , *3 (June 30, 1992). The Ohio Supreme Court reversed the Eleventh District, but then itself was reversed by the United States Supreme Court. Scioto App. No. 20CA3903 11 {¶18} After Bendix and Reynoldsville Casket, we issued Johnson v. Rhodes, 4th Dist. Washington No. 98CA26, 1999 WL 595385 (July 23, 1999), rev’d, 89 Ohio St.3d 540 , 2000-Ohio-235 , 733 N.E.2d 1132 , in which we adopted the reasoning of the First District Court of Appeals in Simpson v. Neidlinger, 1st Dist. Hamilton No. C-950649, 1996 WL 656357 (Nov. 13, 1996). We found that the tolling provision of R.C. 2305.15(A) was unconstitutional as applied to an Ohio resident who is absent from the state on vacation and other non-business personal reasons. We found that commerce includes, “those who offer services to interstate vacationers.” Id. at *3. {¶19} A few years after Simpson, the First District held, “We perceive the holding of Bendix has narrowly limited the application of R.C. 2305.15(A) so that the portion of the statute dealing with an out-of-state person is no longer constitutionally valid.” Permanent Gen. Ins. Cos., Inc. v. Dressler, 130 Ohio App.3d 628 , 631, 720 N.E.2d 959 (1st Dist. 1998). The First District judicially amended the language of R.C. 2305.15(A) to limit its application to those who abscond or conceal themselves out of state: We believe that a defendant should not be precluded from using the statute- of-limitations defense where his absences have not affected the plaintiff's ability to file an action against him in a timely manner. R.C. 2305.15 was not meant to reward a dilatory plaintiff by extending the time in which to file a complaint because a defendant vacationed out of state, enjoyed out-of- state restaurants, visited relatives out of state, or participated in a myriad of out-of-state activities. The statute was meant to avoid the loss of a meritorious claim because a diligent plaintiff was prevented from timely bringing an action because a defendant absconded or concealed himself to avoid service of process. There is nothing in the record to indicate Dressler had absconded or concealed his whereabouts. Further, even if the portion of the statute dealing with out-of-state persons applied, there is nothing in the record to demonstrate that Dressler was out of state to avoid service of process. “If a defendant is amenable to service of process during that time period for R.C. 2305.15(A) purposes, that defendant is present in the state.” Scioto App. No. 20CA3903 12 Id. at 632, quoting Jones v. St. Anthony Med. Ctr., 10th Dist. Franklin No. 95APE08-1014, 1996 WL 70997 , *7, citing Thompson v. Horvath, 10 Ohio St.2d 247 , 251, 227 N.E.2d 225 (1967) (“a defendant is present under the savings statute when it can be made to answer to the claims of the plaintiff. Since the defendant corporation was amenable to process during the period of the statute of limitations, it was present in the state, the savings statute is inapplicable, and the statute of limitations is properly available as a defense”). The First District noted that, since Bendix, Ohio appellate courts have inconsistently interpreted R.C. 2305.15, with some courts finding it unconstitutional as it applies to absences from the state for employment purposes and others continuing to apply a literal interpretation. Id. at 631, fn. 6, 7. {¶20} The Supreme Court of Ohio determined that a conflict existed between our decision in Johnson, two Ninth District cases, and a Second District case. See Johnson v. Rhodes, 87 Ohio St.3d 1477 , 721 N.E.2d 1477 (1999) (“The conflict cases are Brown v. Lavery (1993), 87 Ohio App.3d 745 , 622 N.E.2d 1179 ; Gehr v. Elden (July 8, 1992), Lorain App. No. 91CA005192, unreported, 1992 WL 161393 ; and Hoagland v. Webb (June 3, 1994), Montgomery App. Nos. 14024 and 14061, unreported, 1994 WL 237504 ”). In Gehr v. Elden, supra, the Ninth District held that the tolling provision of R.C. 2305.15(A) applied “to brief absences taken for business or recreation” where the defendant had admitted to being absent from Ohio for “some nineteen weeks during the two years following the incident.” Id. at *1. In Brown v. Lavery, supra, the defendant was absent from Ohio for at least 198 days while attending college. Citing Wetzel v. Weyant, supra, the Ninth District held that the “statute unambiguously provides that when a party departs from the state, the time of his absence shall not be computed as part of the statutory Scioto App. No. 20CA3903 13 period.” (Emphasis sic.) Brown at 747. Neither Gehr nor Brown involved an analysis of the Commerce Clause or the burdens that R.C. 2305.15(A) might place on interstate commerce. {¶21} However, the Second District’s decision in Hoagland v. Webb, supra, involved an analysis of Bendix in the context of an employee, Webb, who was employed by a company that sold conveyor systems in interstate commerce. Webb was employed as a field supervisor and travelled extensively as part of his employment to install conveyors in Illinois, Kentucky, and Indiana. The appellate court found that Webb’s employer was involved in interstate commerce and that Webb, “by traveling in the course of his employment, was also engaged in interstate commerce.” Because the Commerce Clause was implicated, the appellate court conducted a balancing test to determine if the tolling provision placed an impermissible burden on interstate commerce. It found: Individuals whose job descriptions mandate frequent interstate travel would have to choose between keeping their jobs and forfeiting the statute of limitations protection. Employers whose businesses require interstate travel, and who wish to keep their employees who are subject to suit, would incur increased business expenses as they would have to either change the job descriptions of those employees so that they would not be required to leave the state or terminate those employees and pay for the recruitment and training of new employees to take their place. Hoagland v. Webb, 2d Dist. Montgomery No. 14024, 1994 WL 237504 , *4 (June 3, 1994). When compared to the relative ease with which Webb, as an Ohio resident, could have been served by simple certified mail, the appellate court found “far less justification for the tolling of the statute of limitations period.” Id. at *5. The Second District held: We must conclude that that portion of R.C. 2305.15(A) which mandates automatic tolling of the statute of limitations period for persons who travel interstate in the course of their employment is an impermissible burden on interstate commerce. Therefore, R.C. 2305.15(A), as it applies to Webb, constitutes an unconstitutional violation of the commerce clause and cannot Scioto App. No. 20CA3903 14 be applied to toll the statute of limitations period during those times when Webb was out of state on business. Id.; see also Lovejoy v. Macek, 122 Ohio App.3d 558 , 564, 702 N.E.2d 457 (11th Dist.) (“we are most persuaded by the analysis used by the Second District Court of Appeals in Hoagland * * * vacation trips do not rise to the level of acts engaging interstate commerce”); Johnson v. Rhodes, 4th Dist. Washington No. 98CA26, 1999 WL 595385 , *4 (July 23, 1999) (Abele, J., dissenting, “I agree with the views expressed in Hoagland v. Webb * * * until the Ohio General Assembly amends the statute’s language, or until the Ohio Supreme Court chooses to reconsider the issue, courts should apply the literal interpretation of the statute.”). {¶22} Approximately six months after our decision in Johnson v. Rhodes, the Tenth District Court of Appeals issued Gallo v. Trakas, 10th Dist. Franklin No. 99AP-513, 2000 WL 28846 (Jan. 13, 2000) in which the defendant Denise Trakas had left Ohio for three days1 and the appellate court held, “The Supreme Court of Ohio has clearly ruled that such absences from the state toll the statute of limitations.” Id. at *1. The Tenth District limited the holding in Bendix, “to those circumstances where the effect of the statute is to permanently toll the statute of limitations. The statute can be viewed as a burden on interstate commerce when it makes foreign corporations permanently liable to being sued in the courts of Ohio. R.C. 2305.15(A) does not burden interstate commerce when it extends a statute of limitation for a reasonable period of time due to a temporary absence of the party to be sued.” Id. at *2. 1 The decision does not state whether she left for business or pleasure, but Gallo characterized it as “vacation” in his assignment of error. Scioto App. No. 20CA3903 15 {¶23} The Supreme Court of Ohio, in addition to the conflicts in the Second and Ninth Districts, certified a conflict between the Tenth District’s decision in Gallo v. Trakas and our decision in Johnson v. Rhodes and ultimately reversed our decision in Johnson and affirmed Gallo. Gallo v. Trakas, 88 Ohio St.3d 1514 , 728 N.E.2d 402 (certifying conflict); Johnson v. Rhodes, 89 Ohio St.3d 540 , 2000-Ohio-235 , 733 N.E.2d 1132 (reversing Johnson, 4th Dist. Washington No. 98CA26, 1999 WL 595385 (July 23, 1999)). {¶24} In Johnson, the Supreme Court of Ohio held that R.C. 2305.15(A) tolls the statute of limitations when an individual is absent from Ohio for non-business reasons. The Court limited Bendix to its facts, “the decision of the court in Bendix operates to preclude the application of R.C. 2305.15 against out-of-state corporations that have not appointed an agent for service of process in the state of Ohio. However, the decision stops far short of declaring R.C. 2305.15 unconstitutional in any other application.” Johnson at 542. The Court found, “the application of R.C. 2305.15 to individuals * * * who temporarily leave the state of Ohio for non-business reasons, imposes no such impermissible burden.” In the concurring opinion, Justice Cook clarified that the term “temporary” was used only to underscore that the tolling statute applies equally to permanent and temporary absences and that the qualifying phrase “non-business reasons” likewise does not appear in R.C. 2305.15 – it is a term used by the majority as a phrase “to meet Bendix.” {¶25} Since the Ohio Supreme Court’s decision in Johnson v. Rhodes, our Court analyzed R.C. 2305.15(A) and held that “under Bendix, R.C. 2305.15(A) is unconstitutional as applied to * * * a person who never has been a resident of Ohio.” Ruble v. Ream, 4th Dist. Washington No. 03CA14, 2003-Ohio-5969 , ¶ 24; see also Ward Scioto App. No. 20CA3903 16 v. Graue, 2013-Ohio-1107 , 987 N.E.2d 760 , ¶ 20 (12th Dist.) (Graue, a resident of Kentucky employed by and driving a UPS delivery truck frequently across state lines, was not subject to the tolling provision in R.C. 2305.15(A) because he was never a resident of Ohio and was in Ohio for purposes of interstate commerce); Grover v. Bartsch, 170 Ohio App.3d 188 , 2006-Ohio-6115 , 866 N.E.2d 547 , ¶ 44 (2d Dist.) (Bartsch was a resident of Virginia, not Ohio, and therefore R.C. 2305.15(A) was unconstitutional as applied to him). {¶26} Both Matthew and Bryan urge us to consider federal case law in analyzing the application of the tolling provision in R.C. 2305.15(A). While we are bound by the decisions issued by the Supreme Court of the United States, we are not bound by lower federal court decisions. See State v. Burnett, 93 Ohio St.3d 419 , 423, 2001-Ohio-1581 , 755 N.E.2d 857 , citing State v. Glover, 60 Ohio App.2d 283 , 287, 396 N.E.2d 1064 (1st Dist.1978) (“We would first make the observation that, although we hold the United States Sixth Circuit Court of Appeals in high regard and we find their decisions to be most persuasive, we are not bound to follow the holdings that they articulate”); State ex rel. Yost v. Volkswagen Aktiengesellschaft, 137 N.E.3d 1267 , 2019-Ohio-5084 , ¶ 30 (10th Dist.) (Ohio courts are not bound by decision of a federal court other than the United States Supreme Court “but we are free to consider the persuasiveness of such decisions”). {¶27} We find that Johnson, Bendix and Reynoldsville Casket provide sufficient binding authority for us to fully analyze whether R.C. 2305.15(A) tolls the statute of limitations here. According to the affidavit Bryan submitted in support of his summary judgment motion, Bryan was a resident of Ohio on the date of the accident. When he left Scioto App. No. 20CA3903 17 Ohio to move to Nevada, he did so “because a woman that I was dating had a home there. While I was living in Nevada, I married my wife and found employment in the State of Nevada.” Because it is undisputed that Matthew knew Bryan had moved to Nevada, the “abscond or concealment” provisions of the tolling statute are inapplicable here. {¶28} Under Johnson, the plain language of R.C. 2305.15(A) provides that “when a person ‘departs from the state * * *, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.’ ” Johnson at 542. Therefore, the limitations period in R.C. 2305.10 was tolled by Bryan’s absence from Ohio unless R.C. 2305.15(A) is unconstitutional as applied to him. In his summary judgment motion, Bryan argued that R.C. 2305.15(A) is unconstitutional as applied to him because “he moved his residence to the State of Nevada for the purposes of marrying his wife and to find other employment.” In his reply in support of summary judgment, Bryan asserted that it was his decision to permanently relocate to Nevada that makes the tolling provision unconstitutional, “Once he was no longer a resident of the state of Ohio, the application of R.C. 2305.15(A) to him was unconstitutional.” {¶29} However, we have found no case law that supports his argument that by simply moving out of state and establishing residence elsewhere, the tolling provision is rendered unconstitutional. An individual’s relocation from Ohio to another state does not, alone, trigger a Commerce Clause analysis. Rather, the issue as identified in Bendix and Reynoldsville Casket, and as construed in Johnson, is whether the statute as applied to Bryan places a burden on interstate commerce. And, if so, can it be justified as a means of protecting Ohio residents. Scioto App. No. 20CA3903 18 {¶30} For R.C. 2305.15(A) to be unconstitutional as applied to Bryan we must determine whether Bryan was “engaged in commerce” so as to implicate the Commerce Clause. Bryan departed from the state to pursue a romantic interest in Nevada. Eventually he married and found a job. Bryan was neither a foreign corporation engaged in interstate commerce like the defendant in Bendix, nor an out-of-state employee of a foreign corporation like the individual defendant in Reynoldsville Casket. Unlike Webb, Bryan was not employed by a company that required him to travel extensively out of state to fulfill his job obligations. See Hoagland v. Webb, 2d Dist. Montgomery Nos. 14024,14061, 1994 WL 237504 (June 3, 1994). {¶31} Bryan argues that under Tesar v. Hallas, 738 F.Supp. 240 (N.D.Ohio 1990), the application of R.C. 2305.15(A) is unconstitutional as applied to him. He contends that under Tesar, the “movement of individuals falls within the Commerce Clause” and interstate commerce is affected when persons move between states in the course of or in search for employment. Id. at 242 . However, as we stated previously, federal court cases are not binding on us. And, Tesar can be readily distinguished here where Bryan moved for romance, not employment. To the extent we consider federal cases for their persuasiveness, we find far more persuasive the Sixth Circuit’s analysis in Garber v. Menendez, 888 F.3d 839 (2018). There an Ohio physician retired and relocated to Florida. The United States District Court for the Northern District of Ohio – which was reversed by the Sixth Circuit – found that “the decision to permanently leave Ohio for Florida does implicate the Commerce Clause.” Garber v. Menendez, Case No 1:17 CV 1214, 2017 WL 3705875 , *3 (N.D.Ohio Aug. 28, 2017) rev.d, 888 F.3d 829 . Because the district court found that the tolling provision in R.C. 2305.15(A) implicated interstate commerce, it Scioto App. No. 20CA3903 19 analyzed whether the burden it places on commerce is impermissible and found that it was because it, “prevents individuals from permanent transport across state lines unless the individual waits until the statute of limitation has expired.” Id. The statute was not justified because there was, “no indication that [Dr. Menendez] could not be served via Ohio’s long arm statute.” Id. {¶32} The Sixth Circuit reversed. It explained that historically states could not compel an out-of-state party to respond to a lawsuit. As a result, defendants could commit wrongs and leave the state until the statute of limitation expired. States responded by implementing tolling statutes. Garber v. Menendez, 888 F.3d 839 , 841 (2018). Eventually laws evolved and states enacted long-arm statutes that allowed parties to file suits against out-of-state defendants. Some legislatures amended their tolling statutes to apply only if the long-arm statute did not. Ohio “did not alter their tolling statutes, whether via amendment or interpretation. The tolling laws of Ohio thus work today the way they always have worked.” Id. at 842. {¶33} The Sixth Circuit examined Commerce Clause jurisprudence and noted that review of state laws under the Commerce Clause looks at unconstitutional “economic protectionism,” either explicit discrimination or laws that appear neutral but have “an impermissibly protectionist purpose or effect.” Id. at 843. It found that Ohio’s tolling provision in R.C. 2305.15(A) “clears each of these hurdles.” Dr. Menendez does not claim that the law explicitly discriminates against interstate commerce. For good reason. On its face, the tolling statute bears none of the hallmarks of facial discrimination. It draws no distinctions based on residency. The law applies to an Ohio resident who commits a tort in Ohio just as it applies to a Michigan resident who does the same. Johnson v. Rhodes, 89 Ohio St.3d 540 , 733 N.E.2d 1132 , 1133 (Ohio 2000); Ohio Rev. Code § 2305.15. And it does not distinguish between interstate transactions and intrastate transactions. The tolling statute applies Scioto App. No. 20CA3903 20 regardless of where the underlying lawsuit arises. See Seeley, 269 N.E.2d at 123. The law, it is true, by its nature will affect out-of-state residents more often than in-state ones. But that reality does not establish a cognizable form of discrimination if the statute otherwise treats similarly situated in-state and out-of-state entities the same. General Motors Corp. v. Tracy, 519 U.S. 278 , 298–99, 117 S.Ct. 811 , 136 L.Ed.2d 761 (1997); CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 , 88, 107 S.Ct. 1637 , 95 L.Ed.2d 67 (1987); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 , 471–72, 101 S.Ct. 715 , 66 L.Ed.2d 659 (1981) (rejecting a claim of discrimination because the challenged statute “regulate[d] evenhandedly ... without regard to whether the [commerce came] from outside the State”). Ohio tolls the statute of limitations for a defendant outside of the State regardless of whether he once resided in Ohio or not. Garber v. Menendez, 888 F.3d 839 , 843 (6th Cir.2018), cert. denied, 139 S.Ct. 1261 , 203 L.Ed.2d 276 (2019). {¶34} The Sixth Circuit found Ohio’s tolling statute to be one of the policy choices that provides benefits to residents. “But the States’ ability to attract and retain residents through policy choices has long been considered a healthy byproduct of the laboratories of democracy in our federalism-based system of government, not a sign of unconstitutional protectionism.” Id. at 844. The Court explained that the type of cases that violate the Commerce Clause are those where “ ‘the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation.’ ” Id. quoting McBurney v. Young, 569 U.S. 221 , 235, 133 S.Ct. 1709 , 185 L.Ed.2d 758 (2013). The tolling provision of R.C. 2305.15(A) as applied to the statute of limitations is not the type of case that fits within the “ ‘common thread’ of the court’s dormant Commerce Clause.” Id. at 845. {¶35} The Court rejected the argument that Bendix requires the Court to invalidate the tolling provision. It explained that the Bendix decision involved a foreign corporation Scioto App. No. 20CA3903 21 and the tolling provision “forced out-of-state companies like Midwesco to face liability indefinitely as a cost of doing business across state lines. The Court held that this favoritism imposed a ‘significant’ burden on interstate commerce that, measured by Pike balancing, outweighed any local benefit of the law.” (Citations omitted.) Id. at 846. The Court found that the tolling statute did not, “impose a cost on a traditional interstate business transaction in the same way” to Dr. Menendez. Dr. Menendez lived in Ohio and treated an Ohio resident in Ohio. “The application of the statute does not lead to favoritism toward in-state firms over out-of-state ones. It merely creates a benefit for residents of Ohio.” Id. {¶36} The Sixth Circuit reversed the district court’s decision. For purposes of the tolling provision in R.C. 2305.15(A), an Ohio resident’s decision to permanently leave Ohio to move to another state does not implicate the Commerce Clause, nor does the statute ban travel or prevent individuals from permanent transport across state lines. Id. at 845 (as for any “travel ban,” the Court rejected Dr. Menendez’s speculative argument that R.C. 2305.15(A) “dissuaded many Ohio doctors from retiring to Florida” and instead found that “the North to South traffic on Interstate 75, we suspect, provides a long proof to the contrary, and the invalidation of this tolling provision, we also suspect, would not hasten that traffic”). Like Dr. Menendez, Bryan left Ohio to live permanently in another state. His move did not implicate the Commerce Clause. {¶37} We find that although the trial court’s decision here was a thoughtful and considered one, it erred in deciding that the tolling provision in R.C. 2305.15(A) did not apply to Bryan’s absence from Ohio. The plain language of the statute provides that the time of Bryan’s absence from Ohio shall not be computed as any part of a period within Scioto App. No. 20CA3903 22 which the action must be brought. Bryan was absent from Ohio to pursue romance in Nevada. Eventually he married and found a job there. Bryan was not engaged in commerce so as to implicate the Commerce Clause. Because the cause of action accrued on April 3, 2016, Bryan was absent from Ohio from June 18, 2016 to August 8, 2018, and the lawsuit was filed on September 11, 2018, it was filed well within the two-year statute of limitations of R.C. 2305.10. We sustain Matthew Dewine’s assignment of error and reverse the judgment. IV. CONCLUSION {¶38} We sustain Matthew Dewine’s assignment of error, reverse the judgment of the trial court, and remand for further proceedings consistent herewith. JUDGMENT REVERSED. CAUSE REMANDED. Abele, J., dissenting: {¶39} I respectfully dissent. Although I readily acknowledge that the principal opinion is well-reasoned and sets forth a detailed chronology of all pertinent cases on this topic, I believe we should follow applicable Ohio Supreme Court authority until instructed to do otherwise. {¶40} In the case sub judice, on April 3, 2016 Defendant-Appellee Bryan Dewine (Bryan) operated a pick-up truck and struck a guardrail. Bryan’s son and passenger, Plaintiff-Appellant Matthew Dewine (Matthew), sustained injuries. At that time, both father and son resided in Ohio. On June 18, 2016, Bryan relocated to Nevada and obtained employment, a Nevada driver’s license, a spouse and a permanent address at his spouse’s home. Scioto App. No. 20CA3903 23 {¶41} On August 8, 2018, Bryan returned to Ohio and resided with Matthew. At this time, Bryan was served with a copy of the complaint in this action. Shortly thereafter, Bryan requested summary judgment based upon the expiration of the statute of limitations. Matthew, however, asserted that Ohio’s tolling statute, R.C. 2305.15, tolls the statute of limitations when a defendant is out-of-state. {¶42} After consideration, the trial court determined that the tolling statute did not apply in this case because at no time did Bryan conceal his whereabouts. As the court pointed out, Bryan openly married, lived, worked, obtained a Nevada driver’s license and became a permanent Nevada resident. The court did note, however, that if Bryan had temporarily left Ohio, the statute of limitations would toll during Bryan’s absence. In its decision, the trial court relied on Johnson v. Rhodes, 89 Ohio St.3d 540 , 2000-Ohio-235 , 733 N.E.2d 1132 , which held that the R.C. 2305.10 limitations period is tolled when an individual temporarily leaves the state of Ohio (and for non-business reasons). See, also, Wetzel v. Weyant (1975), 41 Ohio St.2d 135 , 323 N.E.2d 711 . Thus, the trial court determined that, because Bryan had permanently moved to Nevada and Matthew knew this fact, the tolling statute should not apply in the case at bar. Rather, the tolling statute should apply to individuals who temporarily leave Ohio for non-business purposes. {¶43} After my review, I believe that in the case sub judice the trial court correctly interpreted and followed the applicable controlling authority. In general, the tolling statute is intended for situations when a diligent plaintiff cannot bring an action because a defendant absconded or concealed herself or himself in order to avoid service of process. That is not the situation currently before us, however. Instead, here Matthew openly resided in Nevada as a permanent resident and within reach of Ohio’s long-arm Scioto App. No. 20CA3903 24 jurisdiction.2 To hold otherwise could result in an endless tolling of the statute of limitations, a situation that the Johnson court apparently wished to avoid. {¶44} Accordingly, in light of the foregoing, I believe that the trial court correctly concluded that the tolling statute should apply only to temporary absences rather than to a permanent change of residence, and, thus, should not apply in the case at bar. 2 See, e.g., Civ.R. 4.3(A)(3) (service of process may be made outside this state * * * in any action in this state upon a person who * * * is a nonresident of this state. “Person” includes an individual * * * who * * * causing tortious injury * * * arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state.) Scioto App. No. 20CA3903 25 JUDGMENT ENTRY It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the SCIOTO COUNTY COURT OF COMMON PLEAS to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J.: Concurs in Judgment and Opinion. Abele, J.: Dissents with Dissenting Opinion. For the Court BY: ________________________ Michael D. Hess, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

2020-01-17 22:02:06.332435+00

Arundell

*1120OPINION. ARundell: In view of the facts that have been stipulated, we have only to determine whether the respondent erred in his method of computing the taxable gain realized under the contract of sale of November 21, 1922. The respondent made his computation on the theory that it was an installment sale. Petitioners claim that this was error because the contract had no readily realizable market value, and that therefore all payments under it should be applied to reduce the basis until that was eliminated and then the balance would be, profit. Petitioner’s evidence consisted of the testimony of three witnesses. One of them, a brother of the decedent and one of the executors, was familiar with the details of the sale, but no attempt was made to qualify him to express an opinion as to the value of the contract. His testimony dealt principally with the difficulty that was experienced in collecting from the purchaser. Pie knew the members of the Cunningham Co., but apparently had little or no knowledge as to its solvency or ability to pay. The other two witnesses were officers and members of the loan committees of banks doing business in the community in which decedent’s coal land was located. They gave it as their opinion that the contract had no readily realizable market value. Their testimony was based on the loan procedure of their banks, which, in substance, was that loans would be made only on improved real estate up to 50 per cent of the value fixed by the appraisal committee of the bank. The question here is that of the value of the contract giving the right to remove coal, and not the value of the land to which the contract related. Whether a bank would or would not loan money on a certain piece of land might have some bearing on the value of the land, but in our opinion such evidence is of little weight in determining the value of a contract of the kind here involved. It is not shown that the witnesses or the banks with which they were con*1121nected ever dealt in contracts of this sort or had any occasion to pass upon their value. Nor were the witnesses familiar with the personal responsibility of the purchaser or the security behind the contract. Under the circumstances, we regard their testimony as advisory only and not binding. The Conqueror, 166 U. S. 131; United States v. Beatty, 198 Fed. 284, 292. In our opinion, for reasons above given, the evidence is inadequate to overcome the presumption of correctness of respondent’s determination. In his brief counsel for petitioners states that, in view of that part of the stipulation setting forth the total profit realized as $44,933 instead of $82,314.29 as determined by the respondent, the deficiency for 1923 will be reduced to an amount which he is willing to concede. We are not inclined to accept this concession, because a recom-putation may or may not accord with counsel’s present view of it. Accordingly, the deficiencies for both years should be recomputed. Decision will he entered under Rule 50.

2020-01-17 22:02:06.397106+00

Arundell

*1125OPINION. ARUNdell: We have set out in our preliminary statement something of the history of the pleadings in this proceeding. At the close of the hearing counsel for the respondent moved that the proceeding in so far as it relates to the year 1923 be dismissed for lack of prosecution, with a finding that there is a deficiency for that year in the amount determined by the respondent. Petitioner resisted the motion and argues that the amended petition entirely supersedes the original, and the abandoned cause of action for 1923 falls away by waiver and no order is necessary. We think the respondent’s motion should be granted. The original petition covered the two years 1923 and 1925. When respondent’s motion to dismiss for failure to conform to the rules was denied and an amended petition was filed covering only 1925, the proceeding as to 1923 which was initiated by the filing of original petition was left pending on our docket and must be disposed of sometime. The present motion, having been made a.t the first hearing after amendment of the petition, was in our opinion timely, and will be granted. *1126For the year 1925 respondent disallowed a part of the salaries paid petitioner’s president and secretary-treasurer on the ground, as stated in the deficiency notice, that the amounts “ are deemed excessive.” In the case of a close corporation such as we have here, while considerable weight will be given to the judgment of the officers and directors as to what constitutes reasonable salaries (Webb & Bocorselski, Inc., 1 B. T. A. 871), still we may very properly examine the facts to determine whether the amounts claimed are reasonable or excessive and in effect a distribution of profits. McMillan Metal Co., 2 B. T. A. 797. If the amounts paid are excessive and have no substantial relation to the measure of services they are not “ ordinary and necessary expenses.” Botany Worsted Mills v. United States, 278 U. S. 282. The evidence here is that Selke took over this business when it was not on a paying basis and that he and his wife built it up to a point where in the taxable years it earned substantial profits. Selke himself put in long hours in the corporation’s service and aided it financially. His wife solicited some business, took care of telephone calls and sometimes visited the plant. This, however, does not tell us whether the salaries were reasonable compensation for the services rendered or whether they were excessive. One of petitioner’s witnesses was connected with a Louisville bank with which the Selkes had had business relations. He knew of petitioner’s competitors but did not know what salaries they paid their officers. Another witness, a certified public accountant, expressed familiarity with salaries paid officers of other corporations but made no comparison of such salaries with those paid by petitioner. See Becker Bros. v. United States, 7 Fed. (2d) 3. • In our opinion the evidence does not overcome the presumption of correctness attaching to the respondent’s determination. The -proceeding for 1923 will be dismissed, and decision will be entered for the respondent , for the years 1923 and 1925.

2020-12-03 17:00:16.671227+00

https://ecf.ca8.uscourts.gov/opndir/20/12/201477U.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1477 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Samuel E. Haley, III lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Jefferson City ____________ Submitted: November 16, 2020 Filed: December 3, 2020 [Unpublished] ____________ Before COLLOTON, ARNOLD, and KELLY, Circuit Judges. ____________ PER CURIAM. After pleading guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922 (g)(1), Samuel Ernest Haley, III, objected to a presentence investigation report's characterization of him as an armed career criminal—a determination that would subject him to a longer prison term. The district court1 overruled his objection and sentenced him as an armed career criminal to the statutory minimum 180 months' imprisonment. Haley appeals his sentence, and we affirm. To qualify as an armed career criminal, a person convicted of being a felon in possession of a firearm must have three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." See id. § 924(e)(1). Haley does not challenge that he has two such previous convictions. He argues only that the district court erred when it concluded that his Missouri conviction for second-degree assault is a "violent felony," and thus a third predicate conviction. A violent felony is defined, in relevant part, as "any crime punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). To determine whether a crime fits this definition, we consider the elements of the crime—not the facts that ultimately led to the defendant's conviction—and consider whether those elements categorically involve "the use, attempted use, or threatened use of physical force against the person of another." See United States v. Irons, 849 F.3d 743 , 746–47 (8th Cir. 2017). When a statute contains multiple, alternative versions of an offense, we may apply a so-called "modified categorical approach" to determine the particular version of the offense of which the defendant was convicted. See id. at 746 . To do so, we may consider certain documents in the record of the previous conviction, including the charging document. See United States v. Alexander, 809 F.3d 1029 , 1031–32 (8th Cir. 2016). 1 The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri. -2-  At the time of Haley's conviction, Missouri provided four ways to commit second-degree assault, all under the roof of one statute. See Mo. Rev. Stat. § 565.060.1 (1990). A person committed second-degree assault if he "[a]ttempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause," if he "[a]ttempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument," if he "[r]ecklessly causes serious physical injury to another person," or finally if he, "[w]hile in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself." Id. The information charging Haley with second-degree assault said that he, "in violation of Section 565.060, RSMo, committed the class C felony of assault in the second degree, punishable upon conviction under Sections 558.011.1(3) and 560.011, RSMo, in that on or about the 7th day of May, 1990, in the County of Boone, State of Missouri, the defendant knowingly caused physical injury to [victim] by means of deadly weapon." Haley maintains that, since the information did not name the deadly weapon he used, "it is impossible to determine whether the assault second degree plea necessarily rested on the subpart of the statute that qualifies" as a violent felony. We disagree. Even though the information did not name the weapon, we can still discern the statutory subsection under which Haley was convicted because the information's language tracks the subsection dealing with physical injuries caused by a deadly weapon. See id. § 565.060.1(2) (1990). In Alexander, we considered a charging instrument similar to the one here that involved the same Missouri second-degree assault statute. It said, "the defendant knowingly attempted to cause physical injury to [victim] by means of a dangerous instrument." 809 F.3d at 1032. We held there that the parallel between the charging instrument and the second-degree assault statute made it clear that the defendant's conviction rested on the second-degree assault statute's second subsection. Id. So too here. We also held in Alexander that a -3- conviction resting on this subsection categorically constitutes a violent felony. Id. As a result, the district court here properly overruled Haley's objection. The charging document's failure to identify the weapon Haley employed is not an impediment to determining that his conviction was a violent felony. When we hold that a crime is categorically a violent felony, as we have done with this particular crime, we necessarily conclude that it is always a violent felony, no matter the particular means a defendant uses to commit the crime. So here, it doesn't matter for our purposes that the charging document didn't specify whether the dangerous instrument Haley used was a gun, knife, or something else because, no matter what dangerous weapon he used, his conviction for this offense alone is enough to demonstrate that he committed a violent felony. Affirmed. ______________________________ -4-

2020-12-03 17:00:17.023764+00

https://ecf.ca8.uscourts.gov/opndir/20/12/201664U.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1664 ___________________________ United States of America Plaintiff - Appellee v. Antonio Escobar Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Arkansas - Fayetteville ____________ Submitted: November 30, 2020 Filed: December 3, 2020 [Unpublished] ____________ Before BENTON, KELLY, and GRASZ, Circuit Judges. ____________ PER CURIAM. Antonio Escobar appeals after he pled guilty to being a felon in possession of a firearm. The district court1 sentenced him under the Armed Career Criminal Act (ACCA) to 180 months in prison. 1 The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.  Counsel has moved for leave to withdraw, and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that Escobar’s prior drug convictions do not qualify as predicate offenses for purposes of the ACCA, and that the sentence is substantively unreasonable. This court concludes that the district court did not plainly err in sentencing Escobar as an armed career criminal. See 18 U.S.C. § 924 (e) (felon in possession who has three previous convictions for “serious drug offense” shall be imprisoned not less than 15 years); United States v. Coleman, 918 F.3d 592 , 593 (8th Cir. 2019) (standard of review); United States v. Winston, 850 F.3d 377 , 380 (8th Cir. 2017) (to demonstrate plain error defendant must show (1) error, (2) that is clear or obvious under current law, (3) which affected his substantial rights, and (4) seriously affects fairness, integrity, or public reputation of judicial proceedings). The sentence is not substantively unreasonable because the record reflects that the district court properly considered the factors set forth in 18 U.S.C. § 3553 (a), and imposed the statutory minimum sentence. See United States v. Feemster, 572 F.3d 455 , 461-62 (8th Cir. 2009) (en banc) (abuse of discretion occurs when court fails to consider relevant factor, gives significant weight to improper or irrelevant factor, or commits clear error of judgment in weighing appropriate factor); United States v. St. Claire, 831 F.3d 1039 , 1043 (8th Cir. 2016) (within-Guidelines sentence is accorded presumption of substantive reasonableness on appeal); United States v. Woods, 717 F.3d 654 , 659 (8th Cir. 2013) (statutory minimum sentence was not substantively unreasonable). This court has independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and found no other nonfrivolous issues for appeal. The judgment is affirmed. Counsel’s motion to withdraw is granted. ______________________________ -2-

2020-12-03 17:00:17.459087+00

https://ecf.ca8.uscourts.gov/opndir/20/12/192143P.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-2143 ___________________________ Estate of Douglas M. West, by the co-executors Douglas J. West and Mark P. West lllllllllllllllllllllPlaintiff - Appellant v. Domina Law Group, PC LLO; Christian Williams; David Domina; Brian E. Jorde lllllllllllllllllllllDefendants - Appellees ____________ Appeal from United States District Court for the Southern District of Iowa - Council Bluffs ____________ Submitted: May 14, 2020 Filed: December 3, 2020 ____________ Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. ____________ WOLLMAN, Circuit Judge. The Estate of Douglas M. West (the Estate) appeals from the district court’s1 denial of its motion for a new trial under Federal Rule of Civil Procedure 59(a)(1)(A), 1 The Honorable Helen C. Adams, Chief Magistrate Judge for the Southern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636 (c). contending that the district court erred in admitting certain testimony by Domina Law Group’s (DLG) expert witness. We affirm. Douglas M. West and Mark Finken co-founded Western Marketing Associates Corporation (Western Marketing) in 1988. As a result of disagreements between the two, West hired DLG in 2013 to represent him. In 2014, DLG filed on West’s behalf a request for the judicial dissolution of Western Marketing. Pursuant to governing Nebraska law, Western Marketing elected to purchase West’s shares at their fair market value, see Neb. Rev. Stat. § 21-2 ,201(a), (d), which in January 2015 the state court in the dissolution proceedings determined to be $658,000. On June 12, 2015, Finken and Western Marketing filed an amended dissolution petition against West seeking damages for his alleged pre-dissolution misconduct. West died on November 21, 2015, one day after the jury’s decision awarding Western Marketing some $30,000 in compensation and punitive damages. His estate thereafter brought a legal malpractice action against DLG, alleging that DLG had failed to fully advise West of the consequences of filing for judicial dissolution. Specifically, the Estate claimed that DLG had not advised West that the filing of a dissolution petition would enable Western Marketing to elect to purchase West’s shares and that its election to do so would irrevocably commit West to the dissolution process. The Estate contends that in the absence of a commitment to dissolution, West could have sold his shares to Western Marketing for $3.2 million under a Buy- Sell Agreement between Finken and himself, or to his brother Mark West for $4.8 million based on a stock purchase agreement between the two of them. Both parties filed pretrial expert reports. The Estate’s expert, Mark McCormick, concluded that DLG had breached the standard of care by failing to fully advise West about election and irrevocability. McCormick opined that DLG’s attorneys did not understand those concepts and thus could not have adequately informed West about them. DLG’s expert, Steven Wandro, concluded that DLG had -2- met the standard of care even if it had not specifically discussed election and irrevocability. He also concluded that there was insufficient evidence to support the assertion that DLG failed to understand the Nebraska dissolution statute and that it had failed to inform West of the potential consequences of electing to proceed thereunder. After reviewing a DLG attorney’s affidavit that described the attorney’s discussions with West, Wandro filed a supplemental report that amended his response to McCormick’s opinion. In light of the attorney’s affidavit, Wandro reiterated that the attorney’s conduct met the standard of care and concluded that DLG had advised West regarding the consequences of election and irrevocability. Defense counsel asked Wandro six hypothetical questions at trial, each of which told Wandro to assume that DLG had met with West on a specific date to discuss dissolution, and then asked whether DLG had met the standard of care. For example, the first hypothetical question asked: I’d like you to assume a couple things before these letters were written just to determine whether or not this makes a difference. I’d like you to assume before that, before these two letters were written, that there was a conference that occurred between David Domina and Douglas West in Phoenix on June 21st, 2013; at the time of the conference, Mr. Domina shared with Mr. West the corporate dissolution process, including the filing of such a process, the opportunity by the other shareholder to purchase their interests, and opportunity for the parties to settle and, if not, for the Court to determine through liquidation or by valuing the shares of Mr. West for purchase by the company or the shareholder. Assuming that that particular conversation occurred, I want to just ask you -- also I want you to assume that during that conversation that West was told that once dissolution was selected, there was no going back, it was irreversible. -3-  Do you have an opinion within a reasonable degree of certainty whether such a conference would meet the standard of care for attorneys in Iowa representing clients in similar legal proceedings? In response to each hypothetical question, Wandro testified that, in his opinion, the DLG attorneys had met the standard of care. The district court overruled the Estate’s objections to each of the hypothetical questions. After a six-day jury trial, the jury found in favor of DLG. The Estate argues that Wandro’s testimony exceeded the scope of his expert report and therefore violated Rule 26 of the Federal Rules of Civil Procedure. The Estate claims that the hypothetical questions set forth factual scenarios based on unknown, undisclosed evidence that exceeded that set forth in Wandro’s report. We review for abuse of discretion a district court’s decision to admit expert testimony. See Am. Auto Ins. Co. v. Omega Flex, Inc., 783 F.3d 720 , 722 (8th Cir. 2015) (standard of review); see also Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 54 F.3d 478 , 482 (8th Cir. 1995) (“[T]he district court maintains broad control over Rule 26[] issues regarding the disclosure of the substance of an expert’s testimony.”). Rule 26 requires the disclosure of the identity of any expert witness the parties intend to call at trial. The disclosure must be accompanied by a written report from the expert that contains “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). The report must be supplemented if “the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). The report and any supplementation allow the opposing party “a reasonable opportunity to prepare for effective cross -4- examination and perhaps arrange for expert testimony from other witnesses.” Fed. R. Civ. P. 26 advisory committee’s notes to 1993 amendment. We conclude that the district court did not abuse its discretion in admitting Wandro’s responses to defense counsel’s hypothetical questions. At all times, Wandro maintained that DLG had met the standard of care. Wandro’s supplemental report clarified that he believed that DLG’s discussions with West met the standard of care and “[were] sufficient to advise and communicate with Mr. West the potential consequences of filing for judicial dissolution.” We reached a contrary result in Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862 , 865 (8th Cir. 1999), in which we concluded that a Rule 26 violation occurred when the expert, who had opined that rheumatoid arthritis was one of many possible causes of plaintiff’s injury, changed his opinion at trial by testifying that rheumatoid arthritis was the “major cause.” We held that the expert’s “newly arrived at conclusions” on the “key issue at trial” contrasted sharply with his previous disclosures and “resulted in a fundamental unfairness” that could be remedied only by the grant of a new trial. Id. In so holding, we repeated our court’s earlier observation that “[d]iscovery of expert opinion must not be allowed to degenerate into a game of evasion.” Id. (quoting Voegeli v. Lewis, 528 F.2d 89 , 97 (8th Cir. 1977)). Wandro’s testimony did not add factual bases to support his opinion beyond what his supplemental expert opinion disclosed. His opinion that the attorneys had met the standard of care was based on his conclusion that DLG had advised West about election and irrevocability, which in turn was based on his inferentially drawn conclusion that the attorneys had discussed judicial dissolution. The Estate’s hypotheticals offered the same bases for Wandro’s opinion, an assumption that election and irrevocability had been discussed by a DLG attorney. See Barnes v. Omark Indus., Inc. 369 F.2d 4 , 8 (8th Cir. 1966) (finding no error in admission of expert’s answers to hypothetical questions because an expert “witness’ opinion [can be based] on any combination of facts”). We thus conclude that the district court did -5- not abuse its discretion in allowing Wandro’s answers into evidence and properly denied the Estate’s motion for a partial new trial. Our holding is buttressed by the district court’s lengthy, point-by-point explanation of why any error in admitting Wandro’s testimony was harmless in light of its minimal prejudice, it unsurprising nature, its subjection to a “garbage in, garbage out” attack during trial, its lack of impact, and its proponent’s lack of bad faith introducing it. On the last point, we do not disagree with the court’s statement that though “[it] is not endorsing DLG’s discovery conduct, any evidence of bad faith is outweighed by the other . . . factors.” The judgment is affirmed. ______________________________ -6-

2020-12-03 17:00:17.58414+00

https://ecf.ca8.uscourts.gov/opndir/20/12/201567U.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1567 ___________________________ Daniel Mauricio Ramirez-Munoz lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of United States lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: November 16, 2020 Filed: December 3, 2020 [Unpublished] ____________ Before BENTON, KELLY, and GRASZ, Circuit Judges. ____________ PER CURIAM. Daniel Mauricio Ramirez-Munoz, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from the decision of an immigration judge, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because the BIA adopted and affirmed the immigration judge’s decision and added reasoning, we review both decisions together. See Garcia-Milian v. Lynch, 825 F.3d 943 , 945 (8th Cir. 2016). After careful review, we conclude that substantial evidence supports the agency’s denial of asylum. See id. (standard of review; agency decisions are reversed only when petitioner shows the evidence is so compelling that no reasonable fact finder could fail to find in his favor). In support of his application, Ramirez-Munoz proposed the following particular social groups (PSGs): (1) “Members of the Ramirez Murcia and Lopez Moran extended families,” (2) “Salvadoran citizens who are part of a family that has fallen into disfavor with a gang, and family members have been killed in retribution,” (3) “Salvadoran citizens who have incurred gang disfavor because past employment required them to travel into neighborhoods controlled by rival gangs,” and (4) “Salvadoran citizens whose livelihood and ability to travel freely has been restricted due to gang disputes over territories.” We conclude that the third and fourth proposed PSGs were not cognizable based on this court’s prior decisions, because they lacked the required particularity or social distinction. See Mayorga-Rosa v. Sessions, 888 F.3d 379 , 383-85 (8th Cir. 2018). Even assuming Ramirez-Munoz has demonstrated that his first and second family-based proposed PSGs were sufficiently perceived as distinct groups in Salvadoran society, an issue that the BIA declined to reach, see Miranda v. Sessions, 892 F.3d 940 , 943 (8th Cir. 2018) (de novo review of whether group constitutes a PSG); see also Constanza v. Holder, 647 F.3d 749 , 752-54 (8th Cir. 2011) (per curiam) (explaining that a Salvadoran “family that experienced gang violence,” including kidnaping and death by Mara Salvatrucha gang, lacked particularity and social distinction required to be a PSG), we conclude substantial evidence supports the agency’s decision that Ramirez-Munoz failed to establish the requisite nexus between his asserted persecution and feared persecution and his membership in those groups. See 8 U.S.C. § 1158 (b)(1)(B)(i) (applicant must demonstrate that claimed protected ground “was or will be at least one central reason” for persecution); Rivas -2- v. Sessions, 899 F.3d 537 , 542 (8th Cir. 2018) (even assuming cognizability of family group, there must be nexus between persecution and petitioner’s membership in group). Specifically, based on the record, a reasonable fact finder could conclude that his membership in those groups was incidental or tangential to the gangs’ generalized criminal goals, as the gangs never mentioned his family, his other family members remained unharmed in El Salvador, the gangs indiscriminately targeted residents, and the gangs often targeted him for money. See Fuentes v. Barr, 969 F.3d 865 , 871-72 (8th Cir. 2020); Gomez-Rivera v. Sessions, 897 F.3d 995 , 997-99 (8th Cir. 2018); Aguinada-Lopez v. Lynch, 825 F.3d 407 , 409 (8th Cir. 2016). As Ramirez-Munoz’s failure to demonstrate a cognizable PSG or nexus is dispositive of his asylum claim, we do not need consider his other challenges to the denial of his asylum application. See De la Rosa v. Barr, 943 F.3d 1171 , 1174-75 (8th Cir. 2019) (declining to address argument that government was unable or unwilling to protect petitioner after concluding he failed to demonstrate persecution on account of membership in PSG); Baltti v. Sessions, 878 F.3d 240 , 245 (8th Cir. 2017) (declining to consider arguments regarding past persecution because BIA found petitioner failed to demonstrate a nexus, which is a proper basis for denying asylum). Because he failed to satisfy his burden of proof on his asylum claim, we also conclude that he necessarily failed to satisfy the more rigorous standard for withholding of removal. See Rivas, 899 F.3d at 542. Finally, we conclude that the agency properly denied CAT relief. See Prieto-Pineda v. Barr, 960 F.3d 516 , 522 (8th Cir. 2020); Ming Ming Wijono v. Gonzales, 439 F.3d 868 , 874 (8th Cir. 2006) (denial of asylum and withholding of removal dictates same outcome on CAT claim when claims are based on same underlying facts). Accordingly, the petition for review is denied. See 8th Cir. R. 47B. ______________________________ -3-

2020-01-17 22:02:06.583722+00

Aeundell

*1147OPINION. Aeundell: Section 284 (a) (14) of the Bevenue Act of 1921 provides that “If property is compulsorily or involuntarily converted into cash or its equivalent as a result of (A) its destruction in whole or in part, * * * and if the taxpayer proceeds forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary, to expend the proceeds of such conversion in the acquisition of other property of a character similar or related in service or use to the property so converted, * * * or in the establishment of a replacement fund, then there shall be allowed as a deduction such portion of the gain derived as the portion of the proceeds so expended bears to the entire proceeds.” The petitioner is not seeking to exclude from its income the profit it realized upon the destruction of five of its Temple and Chillicothe gins on the ground that it established a replacement fund. Its basis for the exclusion of the amounts is that upon the loss of the properties it proceeded forthwith in good faith to expend the sums in the acquisition of other property of a similar character. Webster’s New International Dictionary defines “ forthwith ” as follows: Immediately; without delay; directly; hence, within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch;— the meaning of the term in a particular case is relative to the circumstances. Bouvier’s definition of the term, cited with approval in Dickerman v. Northern Trust Co., 176 U. S. 181, is: “As soon as by reasonable exertion, confined to the object, it may be accomplished.” The Temple gin was destroyed October 1, 1920, and thereafter the petitioner acquired by foreclosure proceedings the Blackwood gin located in the same city. The evidence does not disclose when the petitioner decided to institute the foreclosure proceedings, when the suit was filed, the date judgment was rendered, when possession and title to the property was obtained, or when the estimated value of the property acquired was entered on the books. Moreover, it is not shown that any part of the proceeds of the insurance on the Temple gin was used to acquire the Blackwood gin. Although the Chillicothe gin was destroyed by fire on October 17, 1921, construction operations on the gin at Weatherford were not started until March 14,1923, a year and four months later, and well after the close of the next cotton ginning season. We do not know the date on which the petitioner decided to erect the plant at Weatherford, or the time the lot was acquired. No explanation has been given for the delay in replacing the property destroyed. The evidence before us on this issue, in our opinion, fails to prove that the petitioner is entitled to the benefits of the statute. Accord*1148ingly, the respondent’s action in refusing to allow the profits as deductions under the provisions of section 324- (a) (14) of the taxing act is sustained. The respondent does not claim that the cost of replacements in the Davis-Duke and Caddell gins are not allowable deductions, but that effect has been given to the expenditures made in the computation of profit on the sales. The replacements were apparently made under a warranty of petitioner in connection with the sale. But whether or not there was a technical warranty, the fact is that petitioner expended money in making good under its contract of sale and in our opinion it is entitled to deduct the amounts spent. Respondent’s contention that effect has been given to the expenditures is refuted by the record. The amounts expended for replacements in both cases were entered in balance sheet accounts and not profit and loss accounts and no adjusting entries have been made to correct the erroneous charges. It is obvious that the cost of replacements has not been allowed to petitioner and the net losses determined by the respondent for the years 1921 and 1922 should be adjusted by allowing the amounts of $1,325.33 and $282.20, respectively, as deductions. The evidence presented in connection with the remaining issue is contrary to the idea that the alleged losses were sustained in the fiscal year ended June 30, 1924. The uncontradicted testimony of the only witness presented by the petitioner is that prior to 1924 the gins ceased to have any value for operation purposes and that values for the gins were retained on its books a long time after the improvements on the properties could not be accounted for. This evidence clearly establishes that the losses were not sustained in the fiscal year 1924. The respondent’s refusal to allow the claimed losses as deductions is approved. Decision will be entered under Rule 50.

2020-01-17 22:02:06.642624+00

Lansdon

*1157OPINION. Lansdon: The only question to be determined in this proceeding is whether the petitioners are taxable as a trust or as a corporation. The deficiencies involved herein result from the respondent’s determination that the Ontra Cafeteria Trust ivas in fact an association taxable as a corporation in accordance with section 2 (a) of the Eevenue Acts of 1924 and 1926. The petitioners contend that the Ontra Cafeteria is taxable as a trust and that in any event, since they were considered to be a “ pure trust ” by the Commissioner at the time the return for 1924 was made, they are entitled to the relief provided for in section 704 (a) of the Eevenue Act of 1928, which provides as follows: If a taxpayer filed a return as a trust for any taxable year prior to the taxable year 1925 such taxpayer shall be taxable as a trust for such year and not as a corporation, if such taxpayer was considered to be taxable as a trust and not as a corporation either (1) under the regulations in force at the time the return was made or at the time of the termination of its existence, or (2) under any ruling of the Commissioner or any duly authorized officer of the Bureau of Internal Eevenue applicable to any of such years, and interpretative of any provision of the Eevenue Act of 1918, 1921, or 1924, which had not been reversed or revoked prior to the time the return was made, or under any such ruling made after the return was filed which had not been reversed or revoked prior to the time of the termination of the taxpayer’s existence. Similar questions were before the Board in Van Cleave Trust, 18 B. T. A. 486; E. A. Landreth Co. et al., 15 B. T. A. 655; and Wilkens & Lange, 15 B. T. A. 1183. In the Landreth case we found for the petitioner and held that up to and including the period July-December, 1922, the Bureau of Internal Eevenue was consistently ruling that irrespective of whether the taxpayer was engaged in business under a form similar to that of a corporation, it was taxable as a trust where the shareholders could not control the actions of the trustees. We extended the above pronouncement in the Van Gleave case to include the period to July 1, 1924, and held that the petitioner in that case was entitled to be taxed as a trust. We are here called upon to decide a similar question with respect to the year 1924, the tax return for which was filed on or before March 15, 1925. The regulations promulgated under the Eevenue Act of 1924 were approved on October 6, 1924, and provide that “All rulings incon*1158sistent herewith are hereby revoked.” Article 1504 of Regulations 65 provides: Association distinguished from, trust. — Holding trusts, in which the trustees are merely holding property for the collection of the income and its distribution among the beneficiaries, and are not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business, are not associations within the meaning of the law. The trust and the beneficiaries thereof will be subject to tax as provided in articles 341-347. Operating trusts, whether or not of the Massachusetts type, in which the trustees are not restricted to the mere collection of funds and their payments to the beneficiaries, but are associated together in much the same manner as directors in a corporation for the purpose of carrying on some business enterprise, are to be deemed associations within the meaning of the Act, regardless of the control exercised by the beneficiaries. The parties have stipulated that I. T. 2061 (C. B. IXI-2, p. 5) was issued on July 10,1924, and that Treasury Decision 3598 (C. B. III-1, p. 489) was issued on July 7, 1924. It is clear from the following quotation of Treasury Decision 3598 that the Internal Revenue Bureau’s position was thereby reversed: Trusts. — Two distinct classes of trusts are recognized by the Department, namely, holding trusts and operating trusts. Holding trusts are those in which the trustees are merely hold'ng property for the collection of the income and d'stributing it among the beneficiaries and are not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business. Such trusts are not associations within the meaning of the law and are not subject to the tax. Operating trusts are those in which the trustees are not restricted to the mere collection of funds and paying them over to the beneficiaries but are associated together' in much the same manner as directors in a corporation for the purpose of, and are actually engaged in, carrying on some business enterprise. These trusts, whether of the Massachusetts type or otherwise, are to be deemed associations within the meaning of the Act, independently of any control exercised by the beneficiaries, and subject to the tax. (Italics ours.) I. T. 2061 provides: The general rule in regard to holding trusts and operating trusts which is announced in the decision of the Supreme Court of the United States in the case of Eecht v. M alley and in Treasury Decision 3598 (C. B. III-l, 489) is applicable under all titles of the Revenue Acts of 1918 and 1921. The facts disclose that for the years 1920 and 1921 the petitioners were considered to be taxable as a trust. For the years 1922 and 1923 the petitioners filed income-tax returns as a trust, which were subsequently rejected by the Commissioner and deficiencies were asserted taxing them as an association. After an appeal to the Board had been filed and after the Revenue Act of 1928 had been approved, the parties stipulated that there were no deficiencies for the years 1922 and 1923. We conclude that the petitioners were not considered to be taxable as a trust under the regulations in force at the time the return for *11591924 was made or under any ruling of the Commissioner or any duly authorized officer of the Bureau of Internal Bevenue which had not been reversed or revoked prior to the filing of the return, and that they are not entitled to the relief provided for in section 704 of the Revenue Act of 1928. The petitioners contend that the Ontra Cafeteria is a trust within the meaning of section 219 of the Revenue Acts of 1924 and 1926, and that it is taxable as such and not as a corporation. This Board and the courts have passed upon similar questions on numerous occasions and it has uniformly been held where the trustees, through corporate or association forms, are engaged in carrying on a business and are not merely holding property for the collection and distribution of income therefrom that they constitute- an association taxable as a corporation, irrespective of the control exercised by the beneficiaries. Hecht v. Malley, 265 U. S. 144; Burk-Waggoner Oil Association v. Hopkins, 269 U. S. 110; Little Four Oil & Gas Co. v. Lewellyn, 29 Fed. (2d) 137; White v. Hornblower, 27 Fed. (2d) 777; J. W. Pritchett et al., Trustees, 17 B. T. A. 1056; Extension Oil Co., 16 B. T. A. 1028; E. A. Landreth Co., supra; Alexander Trust Property, 12 B. T. A. 1226; Durfee Mineral Co., 7 B. T. A. 231; and Anderson Steam Vulcanizer Co., 6 B. T. A. 737. The petitioners, as trustees, are engaged in carrying on a business in much the same manner as directors of a corporation, and, upon authority of the above cases, which we think are controlling here, the determination of the respondent that they are taxable as a corporation is approved. Decision will be entered for the respondent.

2020-01-17 22:02:06.671393+00

Sternhagen

*1164OPINION. SteRNhagen: This petitioner, in March, 1921, filed a corporation income and profits-tax return for 1920, showing gross income $180,-853.78, which was the difference of gross sales $701,091.45 less cost of goods sold $520,237.69; deductions $175,458.65, including expenses, interest, taxes and depreciation; leaving a net income of $5,395.11, upon which an income tax was computed at $339.51. The invested capital was stated to be $2,846.85, which coincided with the amount shown as surplus. A cash dividend -was shown as paid October 15, of $632. Its return for 1921 was filed in March, 1922, showing gross income $182,826.55, deductions $176,665.69, net income $5,960.86, invested capital $25,900, and. total tax $696.63. Auditing these returns, the Commissioner found that certain capital expenditures had been improperly deducted as expense, increased sales, adjusted inventory and allowed additional depreciation, all of -which, carried into a recomputation of tax, resulted in the determination of these deficiencies. *1165The petitioner makes no contention as to the amount of the deficiencies, if it is to be held subject to tax. It now claims, however, that it is entirely exempt from tax by virtue of section 231 (11), Eevenue Act of 1918, as to the year 1920, and section 231 (11), Eevenue Act of 1921, as to the year 1921. For present purposes, both sections are identical, and the material language is as follows: Farmers’, trait growers’, or like associations, organized and operated as sales agents for the purpose of marketing the products of members and turning back to them the proceeds of sales, less the necessary selling expenses, on the basis of the quantity of produce furnished by them. The petitioner argues retroactively by undertaking first to demonstrate that it was, in 1920 and 1921, within the description later carried in the Eevenue Act of 1926, and Eegulations 69; that this description expresses the intendment of the earlier statutes, and therefore that it is within the exemption of the acts in force during 1920 and 1921. This argument seems to carry with it the tacit admission that were the exemption of 1920 and 1921 to be applied strictly in accordance with the language of the acts then in force as above quoted, or the language of the regulations then in force, it would not comprehend this petitioner. While there is some allurement in the reasoning that the latest statute represents the most mature thought and the highest public purpose and that we should promote this by sweeping away refinements of statutory language, it must not be forgotten that the exemption has been applied in its various stages to all taxpayers alike in accordance with the language of the statute and regulations in effect at the time. Congress in each statute expressed the public purpose and, except for ambiguities or obvious errors of drafting, the statute must be applied to all alike in accordance with its terms. Statutory construction is often directed by a consideration of later enactments to clear up doubt in the meaning of the earlier or to correct manifest error in its administration. But we do not understand our authority to extend to the point where we may apply later enactments to a period prior to their adoption by Congress by assuming that they supply earlier inadvertent omissions. United States v. Merriam, 263 U. S. 179. This is particularly true when, as in this case, it is an absolute exemption from tax we are called on to consider, and the administrative construction and application of the earlier statute during the years in question did not embody the later provisions. We must, therefore, consider whether, as shown by the evidence, the petitioner was within the description of the Eevenue Acts of 1918 and 1921. It does not appear under what provision of the California statutes the petitioner was incorporated. We may assume, therefore, that *1166it acted within its powers in issuing certificates, paying eight dollars a year to the holders, and calling it a dividend. There is no reason for the purpose of this tax to call this interest, as petitioner attempts to do. Farmers Cooperative Association, 5 B. T. A. 61; Trego County Cooperative Association, 6 B. T. A. 1275; Farmers’ Cooperative Milk Co., 9 B. T. A. 696. The membership fee was not a loan, but created an interest in the business and property and in such distributions of earnings as under the by-laws were proper. The limitation of the dividends to a small amount might, if standing alone, justify attributing to them but little significance in applying the statute, but would not warrant the Procrustean designation of them as interest. And this we think is also true as to who may be called members. Not all producers who dealt with petitioner were members, and it would be a misnomer to call them such unless they brought themselves within the terms of the articles and the by-laws by paying the fee and thus acquiring the interest in and assuming the responsibility of the business and property. The members were 74, and upon this fact petitioner’s right to exemption must stand. Thus, if we adhere to the facts and do not evade them by distorting terms to fit the statute, it appears that petitioner is not merely conducted for its members, but serves many more producers who are not members than it does members. Although the members received slightly more of the distributed proceeds in each year than did nonmembers, and this might indicate that the products marketed for members exceeded those of nonmembers, this is not necessarily so; and if it were, it would not meet the statute. The marketing done by petitioner for nonmembers was so substantial both in quantity (as indicated by distribution of proceeds) and in number of producers served that it can not be regarded as insignificant or incidental to the cooperative service for members. From the evidence, it does not clearly appear whether petitioner’s operations were confined to that of “ sales agent for the purpose of marketing the products of members.” It appears rather from the testimony as to the nature of its gross receipts that much of its operations consist of manufacturing various products from milk and cream. But in view of our decision otherwise, we need not consider whether this alone would destroy the exemption. Furthermore, it can not be said that the distribution of proceeds is such as to bring petitioner within the statutory exemption. The members paid in less than $8,000. Prior to the years in question the directors borrowed $48,000 to be used in the construction of plant. This was covered by notes. Both the interest and principal of these notes were being paid out of earnings before the producers were paid. The result was to build a substantial and valuable plant in which *1167only the members had an interest and pro tanto to depart from the cooperative distribution contemplated by the statute. There is also some unexplained reference to payments on equipment, but we need not consider this. Nor need we consider whether the payment of $632 of dividends to members is important enough to destroy the exemption. It seems clear enough that petitioner does not turn back either to members or to producers generally “ the proceeds of sales, less the necessary selling expenses.” It is also uncertain whether the amount distributed to producers (if we substitute the word for members) is computed “ on the basis of the quantity of produce furnished by them.” The monthly statements show an amount “ paid to patrons ” and show a distribution thereof proportioned to the grades of produce received. But it is not clear how the amount was arrived at or how its distribution was compute.cl. In 1921 over $37,000 was shown separately to have been paid to two persons for butter fat purchased. This is unexplained and we can not find its place in a cooperative plan. Looking alone at the statutes covering the years in question, as well as the administrative regulations pursuant thereto in effect at the time, we are led to the opinion that petitioner was not exempt. The later statutes and regulations seem to be more liberal, but, even if we assume them to provide the exemption claimed (which we do not decide), we are not at liberty to apply them retroactively in this instance. Petitioner cites United States v. Cambridge Loan & Building Co., 278 U. S. 55, to support a liberal application of the statute. There the Supreme Court found that the general characterization of a well known class of organizations was controlling over the description of its qualifications. Here we have no such characterization of a general class, but a specific enumeration of the attributes necessary to qualify for exemption. Unless the attributes are substantially present the statute is not met and the exemption must be denied. Judgment toill be entered for the respondent.

2020-01-17 22:02:06.730181+00

Lansdon

*1175OPINION. Lansdon: The issues involved in this proceeding are fully set forth in our preliminary statement and need not be repeated here. They will be discussed and decided in the order there stated. When the petitioner began business on August 17, 1918, it took into its asset accounts the estimated value of certain merchandise which it acquired from predecessor concerns in exchange for its stock. At that date all the parties in interest were in agreement as to such value. At some undisclosed date, but prior to December 31, 1918, certain of the prior owners became dissatisfied with the values determined at organization. After some discussion all agreed that the partnership assets and the assets of the individual business were worth, respectively, $10,000 and $500 more than the agreed value at August 17, 1918, and the parties in interest were severally credited on the books of the petitioner with their respective proportionate parts of such alleged additional value. In making its income and profits-tax return for the period in question in the determination of its gross income, the petitioner reduced its closing inventory in the amount it had so credited to prior owners, or $10,500. *1176It is obvious that the procedure adopted was erroneous. If the assets acquired at August 17, 1918, had the value now alleged, the adjustment should have been made by an addition to the opening inventory of the amount so claimed, and the resulting increase would then have been reflected in increased invested capital and decreased income for the taxable period. The method used disturbed invested capital for the taxable period, and if carried into the opening inventory for 1919, distorted income for that year. It seems, however, that for its opening inventory for 1919, the petitioner carried forward its true closing inventory from the preceding period, and in its income and profits-tax return for such year decreased its closing inventory by $10,500. This erroneous accounting resulted in numerous adjustment problems, ail of which are capable of solution if the basis of the changes was correct. The whole matter, therefore, resolves itself into an inquiry as to whether the merchandise which the petitioner acquired for stock at August 17, 1918, had a value of $10,500 in excess of the amounts entered on the books. At the hearing the petitioner accepted the burden of proof and undertook to show that its opening inventory at August 17, 1918, was understated by the amount of $10,500. The evidence in support of this contention is not persuasive. It is conceded that no physical inventory was made. The amounts entered on the books resulted from an estimate in which all the parties in interest participated and in the result of which all agreed. The verbal agreement as to greater value, subsequently made, also was based on an estimate and is not supported by an actual physical inventory made on cost or cost or market. Upon the record, we are unable to find that the values agreed to at the date of incorporation were erroneous. On this issue the evidence is not sufficient to overcome the presumption that the determination of the respondent is correct. J. Bach Co., 1 B. T. A. 1169. At date of incorporation the petitioner acquired depreciable assets from prior owners which it entered on its books at a value of $6,814.28. The record does not satisfactorily establish the remaining useful life of the various articles then and so acquired and, consequently, there is no basis upon which we can compute depreciation thereon for the taxable period and year here involved. On the property acquired between August 17, 1918, and January 1, 1919, the petitioner is entitled to deduct depreciation for the year 1919 on the basis of the cost and useful life of the various items as set forth in our findings of fact. The evidence in support of the petitioner’s contention that it is entitled to deduction of $3,000 on account of additional salaries for 1919 is not siifficient to enable us to hold that the respondent erroneously allocated such salary to the taxable period ended December *117731,1918. A similar infirmity in the evidence constrains us to approve the determination of the respondent as to the deduction for bad debts for the year 1919. Oh March 18, 1919, the petitioner paid the personal-property tax of the partnership for the year 1918 in the amount of $360.72, and on March 16, 1920, it paid its personal-property tax for the year 1919 in the amount of $1,295.60. It is not disputed that these payments were made on account of taxes for the respective years indicated or that such payments were due sometime in March subsequent to the respective years for which they were levied. It is the contention of the petitioner that the taxes paid in 1919 and 1920 were properly accruable on its books for the years 1918 and 1919, and its income and profits-tax returns having been made on the accrual basis, are proper deductions from its gross income for the respective years in which they were levied. The laws of the State of Washington provide as to personal-property taxes (1) that the assessment of values shall be made not later than February 1 of each year; (2) that levies of tax on such property shall be made in October of the same year; (3) that the tax rolls shall be delivered to the county treasurer in the next succeeding January; and (4) that, “ On and after the first Monday of February succeeding the levying of taxes the county treasurer shall proceed to collect all personal property taxes.” Remington’s Code and Statutes of the State of Washington, sections 9102, 9213, 9218, and 9223. In the light of our prior decisions the due and payable dates do not determine when such taxes become accruable obligations of the taxpayer. These taxes were levied in October of 1918 and 1919, respectively, and at such dates became obligations of the taxpayer which it was entitled then to accrue on its books as liabilities. The contention of the petitioner on this issue is sustained. H. H. Brown Co., 8 B. T. A. 112; Crown Williamette Paper Co. et al., 14 B. T. A. 133. The petitioner, in its brief, has abandoned its contention that the statute of limitations had run against the determination, assessment and collection of the deficiency for 1919 at the date when the deficiency notice pertaining thereto was mailed. It still maintains, however, that the determination, assessment and collection of the deficiency for 1918 is barred by such statute. None of the facts relating to the filing of the return or the execution of the consents is in dispute. The petitioner’s income and excess-profits-tax return for the period ended December 31, 1918, was filed on May 1, 1919. It is obvious that in the absence of waivers the five-year period of limitations then effective would have run against any additional tax liability determined therefrom at May 1, 1924. On April 11, 1924, a consent was executed which had the effect of extending the statu*1178tory period for one year, or until May 1, 1925, at -which date the determination, assessment and collection of any additional tax liability was barred, unless the Revenue Act of 1924 or the waiver executed on December 1, 1925, one or the other, or both, operatéd to further stay the statute. The issue is governed by the following sections of the Revenue Act of 1918, under which the taxes accrued, and the Revenue Act of 1924, under which the assessment was made. Revenue Act of 1918: Sec. 250. (d) Except in the case of false or fraudulent returns with intent to evade the tax, the amount of tax due under any return shall be determined and assessed by the Commissioner within five years after the return was due or was made, and no suit or proceeding for the collection of any tax shall be begun after the expiration of five years after the date when the return was due or was made. In the case of such false or fraudulent returns, the amount of tax due may be determined at any time after the return is filed, and the tax may be collected at any time after it becomes due. Revenue Act of 1924: Sec. 277. (a) (2) The amount of income, excess-profits, and war-profits taxes imposed by * * * the Revenue Act of 1918, * * * shall be assessed within five years after the return was filed, and no proceeding in court for the collection of such taxes shall be begun after the expiration of such period. [[Image here]] Sec. 278. (c) Where bolh the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon. In the instant proceeding the consent executed on April 11, 1924, extended the time within which determination, assessment and collection might be made until May 1, 1925. The Commissioner failed to move in the matter in any way within the five-year period of limitation or the extension thereof as consented to by the parties. It follows, therefore, under the plain terms of the Revenue Acts of 1918 and 1924, that after May 1,1925, the respondent was without authority to determine, assess or collect any additional tax liability on account of the petitioner’s return for the period ended December 31, 1918, unless the waiver executed on December 1, 1925, reinstated in him the authority which had lapsed at May 1 of that year. Cf. Russell v. United States, 278 U. S. 181, and United States v. Barth Co., 27 Fed. (2d) 782. The right, if any, of the Commissioner to move after the expiration of the statutory period of limitation is based on section 278 - (c) of the Act of 1924, supra. The respondent contends that the writing-entered into on December 1, 1925, satisfied the terms of that provision, restored his authority to assess, and enlarged the time for the exercise thereof for one year, or more than one year if the petitioner should appeal to the Board. *1179We are of the opinion that, on the facts, the case at bar is within the rule of Wells Bros. Co. of Illinois et al., 16 B. T. A. 79. We hold, therefore, that the Commissioner under and by virtue of the provisions of section 278 (c), supra, and the waiver of December 1, 1925, had authority to determine and assess the tax complained of, at the time of such determination and assessment, and that his acts in respect thereto must be approved. Cf. Stange v. United States, Court of Claims, decided Nov. 4, 1929. Reviewed by the Board. Decision will be entered wider Ride 50.

2020-12-03 17:00:20.484506+00

http://www.ca10.uscourts.gov/opinions/19/19-7008.pdf

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 3, 2020 Christopher M. Wolpert TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 19-7008 v. (D.C. No. 6:18-CR-00034-RAW-1) (E.D. Okla.) CARL MARTIN ROSS, JR., Defendant - Appellant. ORDER AND JUDGMENT * Before HOLMES, MATHESON and McHUGH, Circuit Judges. Carl Martin Ross appeals from the district court’s denial of his motion to suppress evidence. Mr. Ross claims that the evidence in question was obtained in violation of the U.S. Constitution by an illegal search and an illegal interrogation. Mr. Ross also challenges the sentence that the district court imposed on him under the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”), particularly attacking the court’s application of an upward adjustment for the use * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. of firearms in connection with another felony, see U.S.S.G. § 2K2.1(b)(6)(B), and its denial of a downward adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1. Exercising jurisdiction under 28 U.S.C. § 1291 , we affirm the district court’s judgment. I A At all times relevant here, Shandy Wegrzyn was the Deputy Sheriff of Pontotoc County, Oklahoma. In August 2017, she interviewed a suspect who informed her that Mr. Ross was selling methamphetamine. The next month, she learned from a member of local law enforcement that Mr. Ross was suspected in connection with a burglary of several stolen Honda four-wheeled all-terrain vehicles (“ATVs”). One of the ATVs was red and missing its left front mirror; another had an antler hole stuck through the back-left fender. On October 7, 2017, Deputy Wegrzyn received a call from a local wildlife officer who had discovered an abandoned vehicle and horse trailer on a roadway in Pontotoc County. After determining that the vehicle belonged to Mr. Ross, Deputy Wegrzyn and other law enforcement officers traveled to Mr. Ross’s residence to inquire about the vehicle. On the way to the scene of the abandoned vehicle, Deputy Wegrzyn observed Mr. Ross speeding away in another direction in a white vehicle. Soon after, Deputy Wegrzyn called an Ada, Oklahoma, police 2 officer and requested that he watch for Mr. Ross’s white vehicle and pull him over for speeding, if possible. An Ada police officer later stopped Mr. Ross and arrested him for driving with an expired license. As Deputy Wegrzyn and other law enforcement officers approached Mr. Ross’s residence, they observed from the public county road a red ATV located on Mr. Ross’s property. When Deputy Wegrzyn arrived at Mr. Ross’s home, she attempted to conduct a “knock and talk,” but no one answered the door. Aplt.’s App. at 35 (Findings & Rec., filed June 18, 2018). While on the property, Deputy Wegrzyn photographed the red ATV and a green ATV also located on the property. She sent the photos to one of her deputies, and that deputy consulted the individual who had reported the red ATV as stolen. The individual indicated that the red ATV depicted in Deputy Wegrzyn’s photo belonged to him. Deputy Wegrzyn began preparing an affidavit for a search warrant. While she was doing so, Mr. Ross’s wife returned to the home and consented to a search of the residence. At this time, Deputy Wegrzyn was nearly finished with the warrant. But, out of an abundance of caution, the officers declined to enter the residence until a state court judge issued a search warrant. B The warrant authorized a search for the following property at Mr. Ross’s residence: 3  1. Articles of dominion and control[.] 2. Stolen Property including but not limited to 2009 Honda Foreman Natural gear camo pattern fourwheeler, VIN# 1HFTE311794400379 with an antler hole stuck through the back left fender. 2004 Honda Automatic Rancher red in color, missing the left mirror. 3. Drugs including but not limited to methamphetamine, baggies, scales, pay/owe sheets. 4. Firearms[.] Aplt.’s App. at 23–25 (Aff. of Shandy Wegrzyn, dated Oct. 7, 2017) (emphases added). Deputy Wegrzyn also provided an affidavit. In pertinent part, it specified the following facts to support a probable cause finding: On 08/25/2017 I interviewed Kelley Miller. Post Miranda Kelley stated Marty Ross sold several ounces of Methamphetamine per week. Kelley said Marty sold Carl Ross methamphetamine and would sell him several ounces twice a week. Kelley and her husband Steve were purchasing methamphetamine from Carl[.] On 09/27/2017 I spoke with Deputy Good from Pushmataha County in reference to a burglary where two stolen Honda fourwheelers were taken. Deputy Good stated Russell Buttenschoen took the fourwheelers to Mary Ross’s residence. On 10/06/2017 I interviewed Brandon Owens. Brandon stated Marty [Ross] had stolen four wheelers, a side by side[,] and a Kobota tractor on Marty’s property in a barn without doors. 4 On 10/07/2017 I went to assist Wildlife Officer Ty Runyan at 3590 & 1705 in reference to an abandoned vehicle and stock trailer belonging to Marty Ross. We went to Marty Ross’s residence, the above described residence, and I observed two four wheelers that matched the description of the four wheelers stolen from Pushmataha County. I observed a Rhino side by side in the front yard. I observed a firearm on the back of the Rhino along with ammunition. On 10/07/2017 I spoke with Drug Task Force Agent Heath Miller. Miller stated back in December 2014 he had a concerned citizen contact him in reference to Marty Ross taking vehicles, tractors and fourwheelers to Zack Clark[’]s house in the ear1y morning hours. The concerned citizen believed they were operating a chop shop. Miller stated later in December 2014 the Drug Task Force and the Pontotoc County Sheriff’s [Office] executed a search warrant on Zack Clark[’]s residence where approximately 1 pound of methamphetamine, two stolen trucks, stolen tractor and a stolen mower [were found]. One truck had been repainted and both vehicles had fake VIN’s on them. Miller stated in June 2015 Marty [Ross] was arrested in Murray County with ¼ pound of methamphetamine. Marty was coming from Oklahoma City and was headed to his residence in Pontotoc County. In September 2016 Miller Interviewed Marty Ross. Ross told Miller he would go to Oklahoma City and pick up ½ pound of methamphetamine once a week and had been doing that for approximately a year. Ross said when he got the methamphetamine back to his residence he would deliver to other people. 5  Id. at 25–26. While conducting the search of Mr. Ross’s residence, officers discovered stolen property, narcotics, and firearms, including a firearm suppressor. Following the search, on October 9, 2017, Mr. Ross was arrested and charged in Pontotoc County district court for various state-law violations and hired a lawyer to defend him against those charges. The charges included trafficking in illegal drugs, possession of a firearm after a former felony conviction, possession of a firearm during the commission of a felony, knowingly concealing stolen property, and possession of a stolen vehicle. C Nearly a month after the search, Deputy Wegrzyn contacted Special Agent Lucas Keck of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) about the discovery of the firearm suppressor—a federal crime with no analogous state-law criminal offense in Oklahoma. In December, Special Agent Keck and Special Agent John Butler conducted a forty-five minute, recorded interview of Mr. Ross without his counsel present. At this time, the federal government had not filed any charges against Mr. Ross. Agent Keck “assumed [Mr. Ross] had counsel” in connection with the state proceedings against him. Aplt.’s App. at 39. But, during the interview, Agent Keck did not advise Mr. Ross of a right to counsel because he “believed that so long as state charges were not filed on the 6 suppressor, he could interview [Mr. Ross] without counsel.” Id. While most of his questions focused on the suppressor, Agent Keck did ask Mr. Ross about each gun found in his home. On March 14, 2018, a federal grand jury returned an indictment against Mr. Ross, charging him with two crimes arising from the October 7, 2017, search of his residence. Count One charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). Count Two charged him with possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5841 , 5845(a), 5861(d), and 5871. II A Mr. Ross filed a motion to suppress the items seized during the search and the contents of the statements he made to the ATF agents. He argued that the search violated his Fourth Amendment right to be free from unreasonable searches and seizures and that the interview by the ATF agents violated his Sixth Amendment right to counsel. The magistrate judge issued written findings and recommended that the motion be denied. The district court judge “affirmed and adopted” the magistrate judge’s findings as its own and then denied the motion to suppress. Aplt.’s App. at 80 (Dist. Ct. Order, filed July 12, 2018). 7  More specifically, in denying Mr. Ross’s Fourth Amendment claim, the district court noted that the magistrate judge had found that “Deputy Wegrzyn and the other officers observed at least the stolen red Honda four wheeled vehicle from the county roadway without entering the residence or the curtilage of the residence.” Id. at 76 . Recognizing that Mr. Ross hotly disputed this point, the court noted that “[w]hether the officers observed the stolen four wheelers from a public or private road does not change the outcome in this case.” Id. at 79 . This was so, reasoned the court, because there were “sufficient facts in the Affidavit to support a valid search warrant beyond the officers’ seeing the stolen four wheelers on [Mr. Ross’s] property.” Id. Further, in denying Mr. Ross’s Sixth Amendment claim, the district court found that ATF Agent Keck “was investigating the illegal possession of a firearm suppressor” for which there was “no state charge,” and thus Mr. Ross’s Sixth Amendment right to counsel had not attached. Id. Mr. Ross later filed a supplemental motion to suppress, again challenging the validity of the search, but the district court denied that motion as well. Mr. Ross then waived his right to a jury trial and entered into a pretrial stipulation with respect to certain elements of the charged offenses. Notably, as part of this stipulation, Mr. Ross did not admit—as the indictment charged—that he “knowingly possess[ed]” the firearms at issue in the offenses. Aplt.’s App. at 8 11–12 (Indictment, filed Mar. 14, 2018); see id. at 90–91 (Stipulations, filed Aug. 28, 2018). At trial, the district court refused to exclude the evidence Mr. Ross previously had sought to suppress and, moreover, determined that Mr. Ross’s wife voluntarily consented to the search of the house. Ultimately, the district court found Mr. Ross guilty of both counts—possessing a firearm while a felon and possessing an unregistered firearm, that is, the suppressor. B The Presentence Report (“PSR”) calculated a four-level increase of Mr. Ross’s offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for use or possession of a firearm or ammunition in connection with another felony offense—here, knowingly concealing stolen property. 1 The PSR also concluded that Mr. Ross was not entitled to an adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, reasoning that, though he was not automatically barred from the adjustment because he went to trial, this was not a situation “where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).” Aplt.’s App. at 355 (Presentence Report, Addendum, 1 The U.S. Probation Office used the 2016 edition of the Guidelines in calculating Mr. Ross’s sentence. Because Mr. Ross does not challenge this decision of the U.S. Probation Office, we also rely on the 2016 edition in our analysis. 9 filed Dec. 10, 2018). These and other adjustments yielded a total offense level of twenty-eight. An offense level of twenty-eight combined with a category II criminal history resulted in a Guidelines advisory sentencing range of 87 to 108 months of imprisonment. Mr. Ross objected to both the § 2K2.1(b)(6)(B) four-level increase and to the conclusion that he was not entitled to an adjustment for acceptance of responsibility. At sentencing, the district court rejected Mr. Ross’s arguments in support of his objections. In doing so, the court found by a preponderance of the evidence that the four-level enhancement was appropriate because, as in United States v. Basnett, 735 F.3d 1255 (10th Cir. 2013), “[t]he sheer volume of stolen property, which included stolen firearms,” as well as their accessibility, “provide[d] a good inference that the firearms would be used to protect the defendant and the stolen property.” Aplt.’s App. at 315 (Tr. Sentencing Hr’g, dated Feb. 27, 2019). The court also found by a preponderance of the evidence that Mr. Ross was not entitled to a reduction for acceptance of responsibility. The court acknowledged that Mr. Ross had not maintained his innocence and had proceeded to trial solely with the aim of reasserting his challenge to the court’s ruling on his pretrial suppression motion. But the court noted that the latter reason for going to trial did not equate to the kinds of reasons for going to trial that the Guidelines (see U.S.S.G. § 3E1.1 cmt. n.2) expressly note do not 10 disqualify a defendant from the reduction—specifically contesting the constitutionality of a criminal statute or the legality of applying the statute to the defendant’s conduct. And the court reasoned that, though Mr. Ross waived a jury trial, he still required the government to carry its burden of proof at the bench trial. Therefore, based on the foregoing, the court rejected Mr. Ross’s § 2K2.1(b)(6)(B) challenge and denied him an acceptance-of-responsibility downward adjustment. The district court sentenced Mr. Ross to eighty-seven months of imprisonment, and he timely appealed. III Mr. Ross raises four issues on appeal. First, Mr. Ross contends that the searches of his property violated his Fourth Amendment rights. Second, Mr. Ross claims that his subsequent interview with ATF Special Agent Keck violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and his Sixth Amendment right to counsel. Mr. Ross’s final two challenges focus on the district court’s application of the U.S. Sentencing Guidelines. Specifically, Mr. Ross contends that the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was clearly erroneous and that he was entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. 11  For the reasons discussed below, we reject Mr. Ross’s arguments and affirm the district court’s judgment. A Mr. Ross first challenges the search of his property as “an illegal warrantless search.” Aplt.’s Opening Br. at 16. This argument concerns two separate alleged searches that occurred before Deputy Wegrzyn received a warrant: that is, the attempted knock-and-talk and the alleged search of the ATVs. “In reviewing the decision of a district court to deny a motion to suppress, ‘we accept its factual findings unless clearly erroneous and view the evidence in the light most favorable to the government.’” United States v. Hatfield, 333 F.3d 1189 , 1193 (10th Cir. 2003) (quoting United States v. Le, 173 F.3d 1258 , 1264 (10th Cir.1999)). “Whether consent was voluntarily given is a question of fact we review for clear error.” United States v. Harrison, 639 F.3d 1273 , 1277 (10th Cir. 2011) (citing United States v. Silva-Arzeta, 602 F.3d 1208 , 1213 (10th Cir. 2010)). “We review de novo legal issues in a district court’s decision on a motion to suppress,” United States v. Meadows, 970 F.3d 1338 , 1340 (10th Cir. 2020) (citing United States v. Easley, 911 F.3d 1074 , 1079 (10th Cir. 2018)), including “the ultimate determination of reasonableness under the Fourth Amendment,” 12 United States v. Polly, 630 F.3d 991 , 996 (10th Cir. 2011) (quoting United States v. Eckhart, 569 F.3d 1263 , 1270 (10th Cir. 2009)). The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “Houses,” for Fourth Amendment purposes, includes a home’s curtilage, and a home’s “front porch is the classic exemplar” of curtilage. Florida v. Jardines, 569 U.S. 1 , 7 (2013). Yet a knock-and-talk “is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion.” United States v. Shuck, 713 F.3d 563 , 567 (10th Cir. 2013) (quoting United States v. Cruz-Mendez, 467 F.3d 1260 , 1264 (10th Cir.2006)). We have routinely upheld “the constitutionality of knock-and-talks, based on the implied license recognized in Jardines that allows police officers, like members of the public, to approach the front door of a home and knock.” United States v. Carloss, 818 F.3d 988 , 994 (10th Cir. 2016); see also Kentucky v. King, 563 U.S. 452 , 469 (2011) (“[W]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.”). After all, “[t]he home’s occupant remains free to terminate the conversation or even to avoid it altogether by not opening the door.” Carloss, 818 F.3d at 992 (citing King, 563 U.S. at 469–70)). 13  We do not reach the merits of Mr. Ross’s challenge to the knock-and-talk in this case: Mr. Ross has waived the opportunity to challenge it. Before the district court, Mr. Ross challenged the permissibility of the knock-and-talk and objected to the magistrate judge’s report and recommendation. On appeal, however, Mr. Ross does not challenge the knock-and-talk in his opening brief. Indeed, the only mention of the knock-and-talk appears in his reply brief. See Aplt.’s Reply Br. at 6 (claiming law enforcement “fabricate[d] a story about a ‘knock and talk’ using legal jargon . . . . to conduct an illegal search no matter how thin the justification”); see also id. at 3 (“[T]his suggestion of a ‘knock and talk’ is a lawyer contrived device to evade the facts [of] what actually occurred.”). As such, the argument comes too late, and we decline to consider it. See, e.g., United States v. Leffler, 942 F.3d 1192 , 1197 (10th Cir. 2019) (“In this Circuit, we generally do not consider arguments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived.”); Bronson v. Swensen, 500 F.3d 1099 , 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised . . . in an appellant’s opening brief.”). We turn to law enforcement’s alleged search of the ATVs at Mr. Ross’s residence. Mr. Ross contends that, contrary to the magistrate judge’s finding, the officers did not observe even the red ATV from the public road and that Deputy Wegrzyn impermissibly entered onto the curtilage in examining the ATVs in 14 furtherance of her investigation. In this regard, Mr. Ross contends that Deputy Wegrzyn’s conduct is akin to the officer in Collins v. Virginia, 138 S. Ct. 1663 (2018)—conduct that the Supreme Court declared to be in violation of the Fourth Amendment. However, like the district court, 2 we ultimately have no need to determine whether law enforcement’s observations of the ATVs ran afoul of Collins or otherwise violated the Fourth Amendment. That is because, irrespective of any such violation, Deputy Wegrzyn’s affidavit included sufficient facts to provide probable cause for a search of Mr. Ross’s residence—including the area where the ATVs were located—even when all of the information concerning law enforcement’s on-site observations of the ATVs is disregarded. See United States v. Sims, 428 F.3d 945 , 954 (10th Cir. 2005) (affirming “the district court’s ruling that the warrants here were based on probable cause without regard to the prior warrantless searches”); United States v. Cusumano, 83 F.3d 1247 , 1250 & n.2 (10th Cir. 1996) (en banc) (“We do not decide the constitutionality of the warrantless use of the thermal imager to scan Defendants’ residence because any such decision is unnecessary to a resolution of Defendants’ appeals. Any decision 2 The district court put the point this way: “Whether the officers observed the stolen four wheelers from a public or private road does not change the outcome in this case. . . . [T]here are sufficient facts in the Affidavit to support a valid search warrant beyond the officers’ seeing the stolen four wheelers on Defendant’s property.” Aplt.’s App. at 78. 15 we might reach on that question would not alter the outcome of these appeals. Detective Bohlig’s affidavit was sufficient to establish probable cause absent any consideration of the results of the thermal imager scan.”); see also United States v. Reed, 921 F.3d 751 , 755 (8th Cir. 2019) (“Evidence should not be excluded . . . based on a constitutional violation unless the illegality is at least a but-for cause of obtaining the evidence.” (omission in original) (quoting United States v. Olivera-Mendez, 484 F.3d 505 , 511 (8th Cir. 2007))); cf. United States v. Awadallah, 349 F.3d 42 , 69 (2d Cir. 2003) (noting that “even after excising the information obtained in violation of the Fourth Amendment and emending the four misleading statements discussed above, ‘there remains a residue of independent and lawful information sufficient to support probable cause’” (quoting United States v. Canfield, 212 F.3d 713 , 718 (2d Cir. 2000))). We elaborate on our conclusion concerning the sufficiency of the affidavit below. But because it is sufficient, Mr. Ross’s challenge to the alleged warrantless search of the ATVs is unavailing. B Mr. Ross challenges the affidavit and the warrant. The magistrate judge determined that the affidavit for the warrant “justif[ied] the issuance of the warrant independent of any of the items found on the curtilage of Defendant’s residence.” Aplt.’s App. at 43. The district court agreed, and so do we. Mr. 16 Ross challenged the affidavit in the proceedings below, but he never challenged the sufficiency of the warrant until now on appeal. 1 Mr. Ross claims that the affidavit for the warrant that Deputy Wegrzyn prepared was “wholly inadequate to provide the necessary basis for a finding of probable cause.” Aplt.’s Opening Br. at 16. He claims that the affidavit contained a “shotgun recitation of dis-jointed assertions . . . reple[te] with speculation, innuendo and surmise.” Id. at 16–17. The affidavit also allegedly “contained statements which were vague” and “hearsay within hearsay without any attempt to verify or vouch for the veracity of the claim.” Id. at 8–9. We disagree. We hold instead that the affidavit sufficiently supplied probable cause for the search warrant. An affidavit provides probable cause for a search warrant if “the totality of the information it contains establishes the ‘fair probability that contraband or evidence of a crime will be found in a particular place.’” United States v. Soderstrand, 412 F.3d 1146 , 1152 (10th Cir. 2005) (quoting United States v. Rice, 358 F.3d 1268 , 1274 (10th Cir. 2004)). At bottom, an affidavit must provide a magistrate judge “with a substantial basis for determining the existence of probable cause.” Illinois v. Gates, 462 U.S. 213 , 239 (1983); accord United States v. Roach, 582 F.3d 1192 , 1200 (10th Cir. 2009) (explaining that an affidavit must show “a nexus between . . . suspected criminal 17 activity and the place to be searched” (omission in original) (quoting United States v. Gonzales, 399 F.3d 1225 , 1228 (10th Cir. 2005)). The affidavit here was adequate to satisfy this standard. This is true even when no reliance is placed on the affidavit’s limited averments recounting Deputy Wegrzyn’s observations at Mr. Ross’s home of the two suspected stolen four wheelers. The affidavit contained contemporaneous reports from identifiable individuals—including a law enforcement officer from Pushmataha County, Oklahoma—concerning illegal trafficking in narcotics by Mr. Ross and, more importantly, his storage of stolen property at his residence. In this connection, the magistrate judge reasoned the following: “The affidavit cites to narcotics activity and allegations of theft involving Defendant and Defendant’s residence and outbuildings[,] likely within the curtilage of the residence[,] which references sources outside of the evidence developed by Deputy Wegrzyn during the visit to Defendant’s residence.” Aplt.’s App. at 43. The district court adopted this reasoning, and we see no error in it. In short, the affidavit contained ample specific information from identifiable individuals creating a sufficient “nexus” between stolen items and Mr. Ross’s home. Roach, 582 F.3d at 1200 . Thus, the issuing judge had a “substantial basis” to conclude that the search would uncover evidence of such wrongdoing. Gates, 462 U.S. at 242 . We therefore reject Mr. Ross’s challenge to the affidavit. 18  2 Mr. Ross also brings a related challenge to the sufficiency of the warrant. He claims that the scope of the warrant was impermissibly broad. In particular, he points to the two “not limited to” qualifications in the warrant: 2. Stolen Property including but not limited to 2009 Honda Foreman Natural gear camo pattern fourwheeler, VIN# 1HFTE311794400379 with an antler hole stuck through the back left fender. 2004 Honda Automatic Rancher red in color, missing the left mirror. 3. Drugs including but not limited to methamphetamine, baggies, scales, pay/owe sheets. Aplt.’s App at 77–78 (emphases added). According to Mr. Ross, “[w]hen the ‘not limited to’ language is inserted[,] the warrant is not [c]onstitutionally proper as the particularity clause has been vitiated.” Aplt.’s Opening Br. at 18. We need not consider the merits of Mr. Ross’s challenge to the warrant for two independent and distinct reasons. First, and most importantly, under Rule 12 of the Federal Rules of Criminal Procedure, Mr. Ross has waived this argument. In the proceedings below, he only attacked the sufficiency of the affidavit and not the scope of the warrant. See Fed R. Crim. P. 12(c)(3) (“If a party does not meet the deadline for making a Rule 12(b)(3) motion [including a motion to suppress], the motion is untimely.”). To be sure, we could consider Mr. Ross’s objection to the warrant if he “show[ed] good cause” for his failure to raise the objection 19 before the district court; yet, he has failed to do so. Id.; see United States v. Warwick, 928 F.3d 939 , 944 (10th Cir. 2019) (“[W]e are required under Federal Rule of Criminal Procedure 12(e) to decline review of any argument not made in a motion to suppress evidence and raised for the first time on appeal, unless good cause can be shown why the argument was not raised below.”); see also United States v. Burke, 633 F.3d 984 , 987 (10th Cir. 2011) (“At no time did [Defendant] argue the affidavit was insufficient to provide the magistrate with probable cause. That contention appears for the first time on appeal, and we thus consider it waived.”). And, second, Mr. Ross’s argument is unavailing on the merits because Mr. Ross’s wife provided—as the district court plausibly found—voluntary consent to law enforcement to search their residence. See Georgia v. Randolph, 547 U.S. 103 , 109 (2006) (holding that warrantless searches of a home are valid if done “with the voluntary consent of an individual possessing authority . . . [either] the householder against whom evidence is sought, or a fellow occupant who shares common authority over property, when the suspect is absent.”) (internal citations omitted) (emphasis added). And the record does not indicate—nor does Mr. Ross argue—that Ms. Ross placed any limits on the scope of her consent. See, e.g., United States v. Pikyavit, 527 F.3d 1126 , 1131 (10th Cir. 2008) (“‘[A] defendant’s failure to limit the scope of a general authorization to search’ is a 20 factor indicating the search was within the scope of consent.” (quoting United States v. Gordon, 173 F.3d 761 , 766 (10th Cir.1999))); United States v. West, 219 F.3d 1171 , 1177 (10th Cir. 2000) (“The scope of the consent to search is limited by the breadth of the consent given.”). Therefore, even if the scope of the warrant were impermissibly broad—by virtue of the inclusion of the “not limited to” language—it would not have affected whether a complete, reasonable search of the residence was authorized and permissible. Consequently, even if Mr. Ross had not waived his warrant challenge (but he has), he could not secure relief. *** In sum, we reject Mr. Ross’s arguments under the Fourth Amendment. C Mr. Ross next alleges violations of his Fifth and Sixth Amendment rights arising from his December 18, 2017, interview with ATF Special Agent Keck. The Fifth Amendment claim alleges a Miranda violation. Aplt.’s Opening Br. at 20–22. Mr. Ross did not raise this claim below. In addition, Mr. Ross brings a Sixth Amendment claim, contending that Agent Keck—by conducting the interview without his attorney present—violated his Sixth Amendment right to counsel. Id. at 21–23. We address these Fifth and Sixth Amendment claims in turn. 1 21  Mr. Ross brings a general claim that ATF Special Agent Keck violated his Miranda rights. Aplt.’s Opening Br. at 20–22. This argument is waived, however, because it was never raised before the district court, and Mr. Ross fails to demonstrate to us good cause for his failure to do so. See, e.g., Warwick, 928 F.3d at 944. 2 Mr. Ross next alleges that Agent Keck’s interview violated his Sixth Amendment right to counsel. Mr. Ross insists that Agent Keck’s assistance was “solicited by the Pontotoc County Sheriff’s Office” and that Agent Keck questioned Mr. Ross at length about all of the firearms seized from his residence—not just the firearm suppressor, which provided the basis for a federal charge. Aplt.’s Opening Br. at 21. Mr. Ross argues that Agent Keck was aware that state charges had been filed against Mr. Ross and assumed that Mr. Ross was represented by counsel based on those charges. Id. The Sixth Amendment right to counsel “attaches only when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.” United States v. Gouveia, 467 U.S. 180 , 185 (1984). The right to counsel, however, is “offense specific.” Texas v. Cobb, 532 U.S. 162 , 167 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171 , 175 (1991)); accord United States v. Mullins, 613 F.3d 1273 , 1286 (10th Cir. 2010). 22 Consequently, Mr. Ross’s claim is without merit because he fails to show that his Sixth Amendment right had attached with respect to any of the federal charges before us, nor does he attempt to show how any Sixth Amendment right attaching to his state-law charges could conceivably affect the Sixth Amendment status of his subsequent federal charges. More specifically, at the time of Agent Keck’s interview, Mr. Ross had not been charged with any federal offense, let alone an offense involving his possession of an unregistered suppressor. Consequently, Mr. Ross cannot establish that his Sixth Amendment right to counsel had attached with respect to the federal offenses before us when Agent Keck interviewed him. Therefore, Agent Keck did not violate his Sixth Amendment rights as to those offenses. D Mr. Ross next argues that the district court made two errors in its application of the U.S. Sentencing Guidelines. First, he contends that the district court erred in applying a special offense characteristic under U.S.S.G. § 2K2.1(b)(6)(B). Second, he claims that the district court wrongly denied his request for a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. 23  1 Mr. Ross insists that there was “no factual nor legal basis” in the record to apply a special offense characteristic under U.S.S.G. § 2K2.1(b)(6)(B). Aplt.’s Opening Br. at 24. He contends that the statements justifying the enhancement “appeared solely as a conclusion in the presentence report.” Id. Section 2K2.1(b)(6) permits a sentencing enhancement for possession of firearms in connection with a separate felony. See U.S.S.G. § 2K2.1(b)(6). In particular, the provision advises the court to impose a four-level enhancement if the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense . . . . Id. The corresponding commentary note indicates that a district court can apply the enhancement if the weapon “has the potential of facilitating another felony offense or another offense.” § 2K2.1(b)(6) cmt. n.14(B). And “[c]ommentary interpreting the sentencing guidelines is binding on the federal courts unless it violates the Constitution or a federal statute, or is inconsistent with the guideline it interprets.” United States v. Farnsworth, 92 F.3d 1001 , 1007 (10th Cir. 1996). Because Mr. Ross challenges the district court’s application of the Guidelines, “we must decide whether the finding constituted clear error.” 24 Basnett, 735 F.3d at 1259 (citing United States v. Bunner, 134 F.3d 1000 , 1006 (10th Cir. 1998)). Here, Mr. Ross has not met his burden of showing that the enhancement was clearly erroneous. The considerable amount of stolen merchandise on Mr. Ross’s property provided a plausible factual basis for the court to find that the simultaneous presence of the firearms had the potential to facilitate Mr. Ross’s stolen-property offense. See id. at 1262 (“From the volume of stolen property, guns, and ammunition at the home, the sentencing judge could reasonably infer that Mr. Basnett kept the guns in connection with his transportation of stolen property . . . [and] that he could use them to safeguard his stash of stolen merchandise.”). 2 Mr. Ross also claims that he was entitled to a two-level reduction under § 3E1.1 because he “entered into a pretrial stipulation which acknowledged the essential elements of guilt as to the charges.” Aplt.’s Opening Br. at 26. He insists that, because he executed a waiver of jury trial, “there were no facts to be determined” regarding his guilt. Id. He therefore argues that “it was an abuse of discretion to deny this two-level reduction.” Id. at 27. The Guidelines permit a two-level sentencing reduction “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Generally, we review a district court’s refusal to apply this two-level 25 reduction under the deferential clearly erroneous standard. See United States v. Lynch, 881 F.3d 812 , 819 (10th Cir. 2018). And, because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility[,] . . . the determination of the sentencing judge is entitled to great deference on review.” United States v. Wooten, 377 F.3d 1134 , 1145 (10th Cir. 2004) (quoting U.S.S.G. § 3E1.1 cmt. n.5). Ordinarily given binding effect, see Farnsworth, 92 F.3d at 1007 , the Guidelines commentary is particularly instructive concerning the application of this adjustment in a circumstance where the defendant elects to go to trial: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1. cmt. n.2. 26  Here, Mr. Ross cannot show that the district court’s denial of his request for a downward adjustment for acceptance of responsibility was clearly erroneous. Though the court acknowledged that Mr. Ross “did not maintain his innocence” and went to trial “solely to challenge the ruling of his pretrial suppression motion related to the search,” it noted that his trial was “not the result of a constitutional challenge to a statute or the applicability of a statute to his conduct.” Aplt.’s App. at 317. That is, the court effectively reasoned that Mr. Ross’s decision to go to trial did not resemble the scenario that the Guidelines commentary envisioned as being compatible with the granting of the enhancement. See U.S.S.G. § 3E1.1. cmt. n.2. Further, the court noted that Mr. Ross—whatever his intentions in going to trial—“still put [the government] to the burden of proof.” Aplt.’s App. at 317. Notably, in this regard, as the government correctly stressed before the district court, Mr. Ross’s pretrial stipulation did not address all of the elements of his charged offenses; more specifically, it was silent concerning his knowing possession of the firearms. See id. at 309 (Gov’t Resp. to Def.’s Sentencing Mem. and Req. for Downward Variance, filed Dec. 31, 2018) (“The only issue left [after the pretrial stipulation], is the issue commonly contested at trial, the issue of possession, an essential element of the crime.”); see also id. at 288–90 (Tr. of Nonjury Trial, dated Aug. 28, 2018) (the district court observing that the 27 stipulation “basically disposed of” and “take[s] care of” all of the elements of the two charged offenses except for knowing possession). Consequently, the government was obliged—at the very least—to establish that factual element beyond a reasonable doubt at trial. In sum, the district court did not clearly err in finding that the facts of this case did not demonstrate that Mr. Ross accepted “full responsibility” for his crimes; therefore, he did not merit the downward adjustment of § 3E1.1. United States v. Portillo-Valenzuela, 20 F.3d 393 , 395 (10th Cir. 1994) (“The reduction is simply a reward for those who take full responsibility.” (emphasis added)). IV For the foregoing reasons, we AFFIRM the judgment of the district court. ENTERED FOR THE COURT Jerome A. Holmes Circuit Judge 28

2020-12-03 17:00:20.949345+00

http://www.ca10.uscourts.gov/opinions/19/19-5033.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 3, 2020 _________________________________ Christopher M. Wolpert Clerk of Court TERRY KENT HOLCOMB, II, Petitioner - Appellant, v. No. 19-5033 (D.C. No. 4:16-CV-00159-TCK-FHM) RICK WHITTEN, (N.D. Okla.) Respondent - Appellee. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________ Terry Kent Holcomb, II, an Oklahoma prisoner, appeals from the district court’s order denying habeas relief under 28 U.S.C. § 2254 . We granted a certificate of appealability embracing two issues. As to the first issue, we affirm the district court. As to the second, we vacate the certificate of appealability as improvidently granted. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND & PROCEDURAL HISTORY A. Trial & Direct Appeal Petitioner Holcomb was tried in Tulsa County District Court on five counts of sexually abusing his ten-year-old stepdaughter, “N.H.” During Holcomb’s defense case, the trial judge refused to permit his expert witnesses to give portions of their opinions. Specifically:  Dr. Paul Shields, a psychologist and therapist, was not permitted to tell the jury that, according to his psychological tests, Holcomb was not likely to be a sex offender; and  Dr. Michael Gottlieb, an expert in child abuse investigations, was not permitted to tell the jury that N.H.’s forensic examination lacked the clinical findings one might expect in light of the abuse alleged. The jury convicted on all five counts. On direct appeal, Holcomb argued that the trial court deprived him of his Sixth and Fourteenth Amendment rights to present a complete defense when it refused to allow Dr. Shields to offer his opinion regarding Holcomb’s propensity to be a sex offender. Holcomb made no argument about Dr. Gottlieb’s testimony. The Oklahoma Court of Criminal Appeals (OCCA) affirmed in full. B. State Postconviction Proceedings Following his unsuccessful appeal, Holcomb filed a pro se application for postconviction relief in the state trial court, raising errors unrelated to the exclusion of Dr. Shields’s and Dr. Gottlieb’s testimony. He also generically requested an 2 evidentiary hearing. The state trial court denied relief on all counts without holding a hearing. Holcomb, still pro se, appealed to the OCCA. The OCCA affirmed. C. Section 2254 Proceedings in Federal Court Having exhausted available state court procedures, Holcomb filed his § 2254 petition in the United States District Court for the Northern District of Oklahoma. An attorney represented Holcomb in this proceeding. Holcomb’s first claim for relief (Claim One) asserted denial of his right to put on a complete defense because the trial court “refus[ed] to allow him to put on four key pieces of evidence.” R. vol. 1, ECF No. 2 at 50.1 Only two of those pieces of evidence remain relevant to this appeal: (i) “[Holcomb] did not fit a sex offender profile,” as Dr. Shields was prepared to testify; and (ii) “N.E.’s[2] physical exam was not consistent with studies of similar prepubescent children subjected to [the abuse alleged],” on which Dr. Gottlieb was prepared to testify. Id. The district court found that Holcomb had never presented the argument regarding Dr. Gottlieb to the Oklahoma courts. See Holcomb v. Whitten, No.16-CV-0159-TCK-FHM, 2019 WL 1212095 , at *4 (N.D. Okla. Mar. 14, 2019). The court further found that the Oklahoma courts would now refuse to consider the argument given Holcomb’s failure to raise it earlier. Id. at *4–5. The court 1 Volume 1 of the record is not consecutively paginated. We will cite the district court CM/ECF number, and the page number in the CM/ECF header. 2 Throughout the § 2254 petition, Holcomb erroneously refers to N.H. as “N.E.” 3 accordingly applied the doctrine of anticipatory procedural bar to “deem [the argument] procedurally defaulted.” Id. at *5. The district court then turned to the complete-defense argument as it relates to Dr. Shields. Holcomb primarily contended that the OCCA failed to apply relevant Supreme Court case law. The district court disagreed: “Contrary to [Holcomb’s] argument, the OCCA adjudicated his constitutional claim on the merits despite its failure to cite any federal law.” Id. at *6 n.5. The court further found that the OCCA’s reasoning was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. Id. at *7–8. The court accordingly denied relief on Claim One. The district court also denied relief on a second claim, concerning ineffective assistance of appellate counsel (Claim Two). It held that Holcomb had not exhausted Claim Two in state court, and the claim was subject to anticipatory procedural bar. The district court then turned to Holcomb’s request for an evidentiary hearing. Holcomb had urged the district court to hear the “live testimony of [his] appellate counsel” when deciding Claim Two. R. vol. 1, ECF No. 2 at 65. Holcomb also stated, without elaboration, that “the testimony of Dr. Paul Shields should assist the court,” id., presumably referring to Claim One. Holcomb said nothing about an evidentiary hearing involving Dr. Gottlieb. Regardless, the district court found that an evidentiary hearing was unnecessary “[b]ecause [Holcomb] procedurally defaulted Claim Two and [the] portion[] of Claim One [regarding Dr. Gottlieb] and because § 2254(d) bars relief on the exhausted portion of Claim One [regarding Dr. Shields].” 4  2019 WL 1212095 , at *10. Lastly, the district court denied a certificate of appealability (COA). D. This Court’s Certificate of Appealability Holcomb timely filed a motion with this court for a COA (COA Motion). The motion argued that the Oklahoma postconviction courts made unreasonable factual findings and erred in refusing to give him an evidentiary hearing. The motion also attacked the exclusion of Dr. Shields’s and Dr. Gottlieb’s testimony. Holcomb described the state trial court’s decisions on these matters as “[b]ased . . . on an unreasonable determination of facts in light of evidence before it.” COA Motion at 25. Finally, Holcomb declared himself “actually innocent,” meaning he “should not have had anticipatory bars applied to his claims.” Id. at 25, 26 . This court granted a COA “as to whether the district court erred in denying an evidentiary hearing on Mr. Holcomb’s habeas claim involving improper exclusion of defense witnesses.” Order, No. 19-5033, at 1 (10th Cir. Nov. 18, 2019). The court also appointed counsel for Holcomb for the merits stage of the appeal. II. ANALYSIS Our COA refers to “improper exclusion of defense witnesses.” As the parties recognize, “defense witnesses” in this context can only refer to Drs. Shields and Gottlieb. Having further reviewed the matter, we find that our COA inappropriately focuses on whether the district court should have granted an evidentiary hearing. Thus, we must either reformulate or vacate the COA. We conclude that we should reformulate the COA as to Dr. Shields but vacate it as to Dr. Gottlieb. 5  A. Dr. Shields 1. The Proper Scope of the COA If evidence was not before the state court, a federal court may not consider it when answering the question posed by 28 U.S.C. § 2254 (d)(1), i.e., was the state court’s decision “contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”? See Cullen v. Pinholster, 563 U.S. 170 , 185 (2011) (“[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”). Here, as it relates to Dr. Shields, the OCCA adjudicated Holcomb’s complete-defense claim on the merits. The district court therefore appropriately asked—without resort to an evidentiary hearing—whether the OCCA’s resolution contradicted or unreasonably applied clearly established Supreme Court law on complete-defense claims.3 The district court’s answer was “no.” Unless that ruling is wrong, we have no reason to ask whether Holcomb met the standard for an evidentiary hearing. 3 Contrary to the COA Motion, a complete-defense claim raises legal issues that a federal habeas court reviews under § 2254(d)(1), not factual issues that the court reviews under § 2254(d)(2). See Nevada v. Jackson, 569 U.S. 505 , 508–09 (2013) (per curiam) (applying § 2254(d)(1) to complete-defense claim); Paxton v. Ward, 199 F.3d 1197 , 1204, 1211–16 (10th Cir. 1999) (same). But even if § 2254(d)(2) applies, it explicitly directs the court to conduct its review “in light of the evidence presented in the State court proceeding.” Thus, under (d)(1) or (d)(2), a federal habeas court may not consider evidence that was not before the state court. 6  We have discretion to “expand the COA to cover uncertified, underlying constitutional claims asserted by an appellant.” United States v. Shipp, 589 F.3d 1084 , 1087 (10th Cir. 2009). We exercise that discretion here. Whether the OCCA appropriately analyzed Holcomb’s complete-defense claim as it relates to Dr. Shields is a matter that “reasonable jurists could debate,” and “deserve[s] encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 , 336 (2003) (describing the standard for granting a COA) (internal quotation marks omitted). We therefore reformulate our COA to encompass that issue. Moreover, although not within the COA as originally formulated, the parties briefed the merits of the OCCA’s disposition, so it is squarely presented for our review. 2. Whether 28 U.S.C. § 2254 (d)(1) Requires this Court to Defer to the OCCA’s Analysis Concerning Dr. Shields’s Opinion We review de novo the district court’s ruling that the OCCA neither contradicted nor unreasonably applied clearly established Supreme Court precedent on the complete-defense question. Littlejohn v. Trammell, 704 F.3d 817 , 825 (10th Cir. 2013). “State and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S. 319 , 324 (2006) (brackets and internal quotation marks omitted). At the same time, “the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Id. (internal quotation marks omitted). “This right is abridged by evidence rules that infringe upon a weighty interest of the 7 accused and are arbitrary or disproportionate to the purposes they are designed to serve.” Id. (brackets and internal quotation marks omitted). The OCCA understood Holcomb’s “Proposition II” on direct appeal to be raising a complete-defense claim: We find in Proposition II that Holcomb was not denied the opportunity to present a meaningful defense. Holcomb argues this decision [to exclude Dr. Shields’s opinion about Holcomb’s likelihood of being a sex offender] denied him a meaningful opportunity to present a complete defense. Summers v. State, 2010 OK CR 5 , ¶ 62, 231 P.3d 125 , 145. R. vol. 2a at D45. Apart from using words like “meaningful defense” and “complete defense,” the citation to the OCCA’s Summers decision further demonstrates that the OCCA recognized the nature of the claim. The cited paragraph from Summers quotes the Supreme Court’s Holmes decision for the principles of a complete-defense claim. Thus, the OCCA understood that Holcomb asserted a violation of his federal constitutional right to present a complete defense, and the OCCA indirectly identified Supreme Court case law relevant to adjudicating that claim. The rest of the OCCA’s analysis of this issue, however, leads us to question whether the OCCA applied the case law it had identified. That analysis focuses entirely on whether Dr. Shields’s opinion was admissible under Oklahoma’s rules of evidence: Admission of evidence is within the trial court’s discretion. Jones v. State, 2009 OK CR 1 , ¶ 39, 201 P.3d 869 , 881. When presenting defense witnesses the defendant must 8  comply with rules of procedure and evidence. Simpson v. State, 2010 OK CR 6 , ¶ 9, 230 P.3d 888 , 895. We will not disturb a trial court’s ruling excluding witness testimony without a clear showing of abuse and resulting prejudice to the defendant. Id. The record shows Holcomb wanted his expert to testify that, in his opinion, Holcomb was not a sex offender. This would directly invade the province of the jury by telling jurors what result to reach. Expert opinion testimony is admissible when it helps jurors understand the facts. 12 O.S.2011, § 2702 [Oklahoma’s equivalent to Fed. R. Evid. 702]. Expert opinion may, under some circumstances, embrace an ultimate fact, but may not simply tell the jury what result to reach. Day v. State, 2013 OK CR 8 , ¶ 11, 303 P.3d 291 , 297, r’hng denied[,] 2013 OK CR 15 , 316 P.3d 931 ; Ball v. State, 2007 OK CR 42 , ¶ 15, 173 P.3d 81 , 86. As the evidence was not admissible, the trial court’s refusal to admit it did not deny Holcomb an opportunity to present a meaningful defense. Simpson, 2010 OK CR 6 , ¶ 9, 230 P.3d at 895 . Id. The state argues that, through this reasoning, the OCCA “implicitly found that the [Oklahoma] evidentiary rule which prohibited the admission of the proffered evidence served a legitimate purpose and was not disproportionate to the end it promotes.” Aplee. Answer Br. at 28. We are not convinced. The problem is the OCCA’s two citations to its Simpson decision, which frame its analysis. Simpson says that “[w]hether [the defendant] was denied the right to present a defense ultimately turns on whether the evidence at issue was admissible.” 230 P.3d at 895 . This is essentially the opposite of the Supreme Court’s holdings on this issue. The point of the right to a complete defense (at least this aspect of it) is that the Constitution occasionally requires evidence to be admitted even when a rule of evidence would exclude it. See Holmes, 547 U.S. at 324 . Yet, following Simpson, 9 the OCCA analyzed only whether the trial court made a proper evidentiary ruling, not whether the evidentiary rule itself was arbitrary or disproportionate to the end it was designed to promote. In sum, the OCCA correctly labeled the right at stake, but analyzed it in a manner “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). 3. De Novo Review This court may “consider [a habeas] petitioner’s claim on the merits and without deferring to the state court’s [analysis]” if “either the reasoning or the result of the state-court decision contradicts [Supreme Court case law].” Panetti v. Quarterman, 551 U.S. 930 , 954 (2007) (internal quotation marks and brackets omitted; other bracketed insertions added for clarity). Here, the OCCA’s reasoning contradicts Supreme Court case law, so we review Holcomb’s complete-defense claim de novo. This requires us to review Dr. Shields’s testimony and the trial court’s rulings in more detail. After establishing his credentials as a licensed marriage and family therapist, Dr. Shields testified that Holcomb became one of his counseling patients after being charged with sexually assaulting N.H. Defense counsel and Dr. Shields then had this exchange: Q. Now . . . as part of your practice, do you generally work with sex offenders? A. No, I do not. 10  Q. . . . [W]hen you’re dealing with this subject matter of sex offenders or sex abuse matters, where would your practice typically steer you? A. Probably about four or five times a year, I will get a call or have a case where a sex offender is involved. Typically, I will review that, in some cases will evaluate, and typically will refer them out. R. vol. 2b at 911. Dr. Shields then testified about receiving training to “identify” sex offenders on “a spectrum of . . . least worst case, to worst worse [sic] case.” Id. at 914. From here to the end of Dr. Shields’s testimony, courtroom proceedings cycled through a pattern of (1) a bench conference, at which the judge and the attorneys would discuss where Dr. Shields’s testimony was headed; (2) a ruling from the judge limiting the testimony; (3) further testimony from Dr. Shields on the topic of the tests he administers to prospective patients, as defense counsel probed the limits of the judge’s ruling; leading to (4) another bench conference. Thus, the judge ruled multiple times on the admissibility of Dr. Shields’s testimony about sex offender testing. The judge’s most detailed ruling came after a bench conference proffer from defense counsel, where counsel stated that I think [Dr. Shields] would testify that he evaluates any patient who is—a prospective patient, rather, that has issues of sex offender issues, he looks at some probabilities, and then he—as he was starting to describe, he looks at false positives, false negatives, assumes guilt for the purpose of the evaluation process, and then goes through trying to eliminate any of those possibilities as being present in that patient before he will work with them. 11  ... And by going through that process, that helps him decide whether to keep the person as a patient and how to deal with them. Id. at 945. To this, the trial judge responded, Well, let me just say it this way; that I’m familiar with psychosexual evaluations in presentence investigations reports. They’re a tool, perhaps, in sentencing and structuring treatment, but I have not seen nor do I imagine that there is a body of scientific knowledge that would allow a psychologist or psychiatrist to testify based on testing and observation of a propensity or a predictability of sexual offending. Now, that body of research may be out there somewhere, but it’s not available in this trial today. The other thing is that the jury would likely be inclined to take that opinion, even though it was just a screening evaluation, as some evidence of probative evidence that the defendant did not commit the offense. I simply can’t allow it. Id. at 946. This ruling contains two bases for excluding Dr. Shields’s testimony: (1) insufficient support for the opinion to be given, see Okla. Stat. tit. 12, § 2702 (2) (expert testimony must be “the product of reliable principles and methods”); and (2) invading the province of the jury. The state does not argue that the trial judge’s insufficient-support ruling independently justifies exclusion. We therefore focus solely on the trial judge’s province-of-the-jury ruling. Under these circumstances we need not determine whether the rule against invading the province of the jury was applied in such an arbitrary or disproportionate 12 manner as to violate Holcomb’s right to present a complete defense. Despite the state’s objections, the jury still heard that Dr. Shields has training to identify sex offenders, and that he does not treat sex offenders. Moreover, defense counsel eventually asked Dr. Shields, without objection, “So, you decided to keep Mr. Holcomb as a patient, and then began a course of treatment; is that correct?” R. vol. 2b at 937. Dr. Shields answered, “That’s correct.” Id. Thus, the jurors heard enough to make the connection that Dr. Shields—who held himself out as a trained expert in identifying sex offenders—did not believe that Holcomb was a sex offender. This was the essence of what counsel sought to present through his offer of proof. Holcomb has not cited a case to us in which the right to a complete defense was deemed violated when the evidence needed to support the defense was admitted, just not in the form the defendant preferred. We hold, then, that the trial court judge did not violate the Constitution by forbidding Dr. Shields from offering an explicit opinion about Holcomb’s likelihood of being a sex offender. On this basis, we affirm the district court’s denial of habeas relief on this issue.4 B. Dr. Gottlieb The district court found that Holcomb procedurally defaulted his complete-defense claim as to Dr. Gottlieb, having never raised it in state court. We 4 We do not mean to imply that we would find a complete-defense violation had the judge prevented or struck the testimony we emphasize above. We simply note that, on this record, the jurors heard enough to draw the inference that Holcomb wanted them to draw, fatally undermining his complete-defense argument. 13 have reviewed the record and agree that Holcomb never presented his complete- defense claim, as it relates to Dr. Gottlieb, to the Oklahoma courts. Holcomb therefore did not “exhaust[] the remedies available in the courts of [his] State,” 28 U.S.C. § 2254 (b)(1)(A), and so there appears to be no basis for considering an evidentiary hearing as contemplated by our COA. Perhaps trying to supply us with a legal footing for considering this claim despite the default, Holcomb invokes the doctrine of actual innocence. “As a gateway, a claim of actual innocence enables habeas petitioners to overcome a procedural bar in order to assert distinct claims for constitutional violations.” Farrar v. Raemisch, 924 F.3d 1126 , 1130 (10th Cir. 2019) (brackets and internal quotation marks omitted), cert. denied sub nom. Farrar v. Williams, No. 19-953, 2020 WL 5882218 (U.S. Oct. 5, 2020). Various courts have held that § 2254’s normal limits on evidentiary hearings do not restrict a federal court’s ability to hold an evidentiary hearing to develop the evidence relevant to actual innocence. See Teleguz v. Pearson, 689 F.3d 322 , 331 n.6 (4th Cir. 2012) (citing decisions to this effect). Holcomb accordingly argues that the district court should have found that Dr. Gottlieb’s excluded testimony, by itself, satisfies the actual innocence standard, or at least that the district court should have heard Dr. Gottlieb’s testimony as part of deciding whether to excuse procedural default. The problem with this argument is that Holcomb never asked the district court to conduct an actual-innocence inquiry (related to Dr. Gottlieb’s testimony or 14 otherwise).5 “Absent special circumstances, we will not reverse on a ground not raised below,” Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772 , 782 (10th Cir. 2007), and we see no special circumstances here. “Therefore, we need not address the issue.” Id. On rare occasions we have concluded that we should vacate a COA, or part of it, as improvidently granted. See, e.g., Bowen v. Kansas, 295 F. App’x 260, 265 (10th Cir. 2008); Hughes v. Beck, 161 F. App’x 797, 800 (10th Cir. 2006) (per curiam). Because we can see no basis for reaching Holcomb’s procedurally defaulted claim as to Dr. Gottlieb, we vacate the COA as it relates to exclusion of his testimony. III. CONCLUSION We affirm the district court’s denial of § 2254 relief as to the excluded testimony of Dr. Shields and vacate the COA as to the excluded testimony of Dr. Gottlieb. Entered for the Court Carolyn B. McHugh Circuit Judge 5 Holcomb’s § 2254 petition did not invoke the actual-innocence doctrine. See R. vol. 1, ECF No. 2. The state nonetheless argued against any actual-innocence exception to procedural default. See id., ECF No. 14 at 22–23, 32. Holcomb still said nothing about actual innocence in his reply brief. See id., ECF No. 20. 15

2020-12-03 17:00:25.077878+00

http://media.ca11.uscourts.gov/opinions/unpub/files/202011205.pdf

USCA11 Case: 20-11205 Date Filed: 12/03/2020 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11205 Non-Argument Calendar ________________________ D.C. Docket No. 6:14-cr-60256-JIC-1 JAIME FERNANDO SANCHEZ, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 3, 2020) Before MARTIN, GRANT, and LUCK, Circuit Judges. PER CURIAM: Jaime Fernando Sanchez, a federal prisoner proceeding pro se, appeals the denial of his post-judgment “motion to dismiss,” which the district court construed as a successive 28 U.S.C. § 2255 motion. The district court held that because  USCA11 Case: 20-11205 Date Filed: 12/03/2020 Page: 2 of 5 Sanchez had no authorization from this Court to file a successive § 2255 motion, it lacked jurisdiction to consider his claims. The government moves this Court for summary affirmance and a stay of the briefing schedule. The government argues that the district court correctly construed his self-styled “motion to dismiss” as a successive § 2255 motion over which it lacked jurisdiction. We agree. Sanchez’s motion is properly construed as a successive § 2255 for which he did not have authorization, so we grant the government’s motion for summary affirmance on that basis. In 2014 Sanchez pled guilty to conspiracy to commit wire fraud and mail fraud affecting a financial institution, in violation of 18 U.S.C. §§ 1349 , 1341, and 1343. Since then Sanchez has tried three times to vacate his conviction by way of a § 2255 motion. He filed his first § 2255 motion in 2016, which the district court denied on the merits. He then sought leave from this Court to file a successive § 2255 in 2018, which this Court denied. And in 2019 Sanchez filed another § 2255 motion in the district court, which the court dismissed for lack of jurisdiction because he had not gotten prior approval from this Court. In March 2020 Sanchez filed the motion now before us. He calls it a “Motion to Dismiss” and argues that his guilty plea was not knowingly and intelligently made and that he did not understand the maximum sentence he faced. He asked that the district court dismiss the information against him under Federal 2  USCA11 Case: 20-11205 Date Filed: 12/03/2020 Page: 3 of 5 Rule of Criminal Procedure 12(b) and vacate his sentence and judgment of conviction. The district court denied the motion. It noted that Sanchez was “long out of time” to submit a motion to dismiss and that the relief he requested would more properly be sought under § 2255. The district court therefore construed the motion as arising under § 2255 and explained that, because Sanchez previously filed a § 2255 motion that had been denied on the merits, he was required to obtain leave from this Court in order to file another one. Because Sanchez had not done so, the court concluded it did not have jurisdiction to consider his motion. This is Sanchez’s appeal. Summary disposition is appropriate in two circumstances: (1) “where time is truly of the essence,” or (2) where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158 , 1162 (5th Cir. 1969).1 In determining whether either circumstance is present here, we review de novo questions of jurisdiction, United States v. Lopez, 562 F.3d 1309 , 1311 (11th Cir. 1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209 . 3  USCA11 Case: 20-11205 Date Filed: 12/03/2020 Page: 4 of 5 2009), and construe Sanchez’s pro se submissions liberally, Jones v. Fla. Parole Comm’n, 787 F.3d 1105 , 1107 (11th Cir. 2015). Under § 2255, a federal prisoner who has been unconstitutionally detained can move to vacate his conviction and sentence. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),2 however, a prisoner cannot file a second or successive § 2255 motion without first obtaining authorization from the Court of Appeals. 28 U.S.C. § 2244 (b)(3)(A). Where a prisoner has failed to obtain such authorization, the district court lacks jurisdiction to consider a second or successive § 2255 motion. Farris v. United States, 333 F.3d 1211 , 1216 (11th Cir. 2003) (per curiam). We affirm the district court’s construction of Sanchez’s motion as arising under § 2255. He requested that the district court vacate his conviction and sentence, which is precisely the type of relief for which § 2255 motions are intended. See 28 U.S.C. § 2255 ; United States v. Jordan, 915 F.2d 622 , 624–26 (11th Cir. 1990) (construing pro se motion to vacate sentence as arising under § 2255). And because Sanchez could have fully and fairly raised his current claims in the prior § 2255 motion that was denied on the merits, the present motion is successive. See Scott v. United States, 890 F.3d 1239 , 1249 (11th Cir. 2018). However, Sanchez never obtained authorization from this Court to file a successive 2 Pub. L. No. 104-132, 110 Stat. 1214 (1996). 4  USCA11 Case: 20-11205 Date Filed: 12/03/2020 Page: 5 of 5 § 2255 motion. The district court therefore lacked jurisdiction to consider Sanchez’s motion and rightly denied it. 28 U.S.C. § 2244 (b)(3)(A); Farris, 333 F.3d at 1216 . Because there is no substantial question that the district court correctly denied Sanchez’s post-judgment “motion to dismiss,” we GRANT the government’s motion for summary affirmance. See Groendyke Transp., Inc., 406 F.2d at 1162 . We also DENY the accompanying motion to stay the briefing schedule as moot. 5

2020-12-03 17:01:43.186626+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2020-0114%20Tappan%20v.%20ABOR%20-%20Memorandum%20Decision.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE WENDY TAPPAN, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, Involving Northern Arizona University, Defendant/Appellee. No. 1 CA-CV 20-0114 FILED 12-3-2020 Appeal from the Superior Court in Coconino County No. S0300CV201800080 The Honorable Cathleen Brown Nichols, Judge AFFIRMED COUNSEL Joshua Carden Law Firm, P.C., Scottsdale By Joshua W. Carden Counsel for Plaintiff/Appellant Arizona Attorney General’s Office, Phoenix By Rachel M.B. Remes Counsel for Defendant/Appellee  TAPPAN v. ABOR Decision of the Court MEMORANDUM DECISION Judge D. Steven Williams delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig joined. W I L L I A M S, Judge: ¶1 Wendy Tappan appeals the superior court’s grant of summary judgment for Arizona Board of Regents (“ABOR”), on Tappan’s claims for unpaid wages and unjust enrichment, arising out of a wage dispute between Tappan and Northern Arizona University (“NAU”). 1 For reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In 2013, NAU employed Tappan as a program coordinator in the career development office of the W.A. Franke College of Business (“FCB”). Tappan was responsible, in part, for coordinating the day-to-day operation of an internship program for academic credit, including meeting with students and employers and evaluating student progress. FCB’s internship for academic credit program is an online course titled “408 Internship for Credit” (“the course”). ¶3 In the fall of 2013, an associate dean asked Tappan to temporarily take over teaching the course. Tappan was then assigned to teach the course every subsequent spring, summer and fall semester, which she did from 2013 until this case commenced in 2018. The parties dispute whether teaching the course was part of Tappan’s regular program coordinator job duties. ¶4 Between 2014 and 2016, Tappan, on the belief that teaching the course was not part of her regular job duties, repeatedly requested additional compensation for teaching the course. Each request was denied by FCB’s dean and Tappan was timely informed of those denials. In the summer of 2017, Tappan again requested additional compensation for teaching the course, this time making the request to her new supervisor, 1ABOR is the constitutionally established governing board for NAU. See Article 16, Sections 2 and 5, of the Arizona Constitution. ABOR is a body corporate that may sue and be sued. A.R.S. § 15-1625. 2  TAPPAN v. ABOR Decision of the Court Dean Kevin Trainor. In her deposition, Tappan testified that, later in the summer of 2017, Trainor “came to my office . . . with a form . . . [and] said he had received approval through the college of business for me to be paid for the course . . . and . . . that I would be [] paid at that time for [the] class going forward.” Tappan considered Trainor’s statement to be a promise that she would receive additional compensation for teaching the course going forward. In September 2017, Trainor submitted the form. Shortly thereafter, Trainor notified Tappan that the compensation request had been denied. Tappan does not allege any other statements made by Trainor, or other employees of NAU, promising separate pay for teaching the course. ¶5 In December 2017, Tappan was promoted to program director, which required that she continue to teach the internship course, with a corresponding salary increase retroactive to April 2017. In January 2018, Tappan served ABOR with a notice of claim seeking separate pay for teaching the course. The following month, Tappan filed this action alleging unpaid wages in violation of A.R.S. §§ 23-353 and -355 and unjust enrichment. 2 ¶6 After discovery, ABOR moved for summary judgment, arguing: (1) Tappan’s claims before July 2017 were time barred as Tappan failed to meet the statutory deadlines governing claims against public entities; and, (2) Tappan’s claims after July 2017 were moot, given her promotion and salary increase retroactive to April 2017. The superior court granted the motion for summary judgment with no explanation of grounds supporting its decision, dismissed Tappan’s claims with prejudice and, over Tappan’s objection, awarded ABOR its taxable costs. Following entry of final judgment, Arizona Rule of Civil Procedure 54(c), Tappan timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). DISCUSSION ¶7 Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). On appeal, we review a grant of summary judgment de novo, Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42 , 46, ¶ 16 (App. 2010), “view[ing] the facts and reasonable inferences in the light most favorable to the non-prevailing party,” Rasor v. Nw. Hosp., 2 Tappan withdrew the claim for unpaid wages under A.R.S. § 23-353 acknowledging she had no claim under that statute because she was still employed by NAU. 3  TAPPAN v. ABOR Decision of the Court LLC, 243 Ariz. 160 , 163, ¶ 11 (2017). We “will affirm summary judgment if it is correct for any reason supported by the record, even if not explicitly considered by the superior court.” KB Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 236 Ariz. 326 , 329, ¶ 14 (App. 2014). I. Summary Judgment Was Proper ¶8 Two statutory deadlines govern claims against public entities. See A.R.S. §§ 12-821.01 and -821. Arizona law first requires a would-be plaintiff to file a notice of claim “within one hundred eighty days after the cause of action accrues.” A.R.S. § 12-821.01(A) (“Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.”). The plaintiff must then file the lawsuit “within one year after the cause of action accrues and not afterward.” A.R.S. § 12-821. Claims “clearly brought outside the relevant limitations period are conclusively barred.” Montano v. Browning, 202 Ariz. 544 , 546, ¶ 4 (App. 2002). ¶9 A claim against a public entity accrues “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.” A.R.S. § 12-821.01(B) (emphasis added). 3 This court has interpreted A.R.S. § 12-821.01(B) “as a codification of the discovery rule for determining when causes of action against public entities . . . accrue.” Thompson v. Pima Cnty., 226 Ariz. 42 , 46, ¶ 12 (App. 2010). Under the discovery rule, a cause of action accrues when the plaintiff knows she has been injured and has a “reason to connect [the injury] to a particular [cause, source, act, event, instrumentality or condition] in such a way that a reasonable person would be on notice to investigate whether the injury might result from fault.” Walk v. Ring, 202 Ariz. 310 , 316, ¶ 22 (2002); see also Doe v. Roe, 191 Ariz. 313 , 322, ¶ 29 (1998) (“A cause of action [accrues when] the plaintiff knows or with reasonable diligence should know the facts underlying the cause.”) (emphasis added). ¶10 Although the determination of when an action accrues is generally resolved by the trier of fact, Walk, 202 Ariz. at 316 , ¶¶ 23–24, this general rule does not apply when there is no genuine dispute as to facts showing the plaintiff knew or should have known the basis for the claim, Thompson, 226 Ariz. at 46–47, ¶¶ 13–14 (finding no genuine factual dispute 3 Section 12-821.01(B) applies to the accrual of both a notice of claim and statute of limitations. See Long v. City of Glendale, 208 Ariz. 319 , 325, ¶ 9 (App. 2004). 4  TAPPAN v. ABOR Decision of the Court that plaintiffs had “reasonable notice to investigate” whether the county was negligent for failing to maintain a roadway because evidence showed the driver learned after the accident he had driven over potholes, the officer on scene told the driver the potholes likely caused or contributed to her accident, and the driver’s family members testified they suspected the potholes were a cause of the accident); Little v. State, 225 Ariz. 466 , 470, ¶ 13 (App. 2010) (quoting Walk, 202 Ariz. at 310, ¶ 24 ) (affirming summary judgment ruling that notice of claim was untimely and explaining a claim accrues “when a ‘reasonable person would have been on notice’ to investigate whether negligent conduct may have caused [the] injury”). ¶11 Here, ABOR argues Tappan’s claims accrued “every payday or semester that [Tappan] failed to receive a teaching stipend” and that summary judgment was proper because there was no genuine dispute as to facts showing that Tappan knew or should have known the basis of her claim every time she received an allegedly deficient paycheck. Thus, according to ABOR, because Tappan filed her notice of claim in January 2018, claims that accrued more than 180 days before that date, i.e. claims that accrued before July 2017, are time barred by the notice of claim statute. ¶12 Tappan, relying on Sobel v. Jones, 96 Ariz. 297 (1964), urges us to conclude the discovery rule is inapplicable to her claims and instead determine, based on principles of quantum meruit, that her claims accrued at the termination of her services, i.e. “when she stopped doing the additional work in her capacity as [p]rogram [c]oordinator,” rather than with every paycheck. In Sobel, plaintiff, the manager of defendant’s trailer park, and defendant, a private citizen, had an agreement that plaintiff would perform construction work in addition to his general managerial duties in exchange for “some compensation besides his wages as manager. Id. at 299 . Several years went by and, despite requests by plaintiff, defendant failed to compensate plaintiff for the additional work. Id. At the end of the construction project, plaintiff reiterated his demand for compensation and defendant asserted the statute of limitations as a defense, arguing that plaintiff’s claims were barred because they had accrued with each paycheck. Id. at 301 . There, our supreme court held the plaintiff’s claim accrued at the completion of the construction project and determined that a cause of action for quantum meruit does not arise until termination of services. Id. The “accrual at termination of services” rule in Sobel, however, has never been applied in actions against public entities which, instead, are governed by § 12-821.01(B). ¶13 Applying the discovery rule, Tappan’s claims accrued every time she received a paycheck lacking the additional compensation. Upon 5  TAPPAN v. ABOR Decision of the Court receipt of each paycheck, Tappan possessed the “minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury.” Doe, 191 Ariz. at 323, ¶ 32 . This point of accrual is further supported by Tappan’s repeated requests for additional compensation, which demonstrate that Tappan identified the wrong and the resulting injury. While Tappan argues a dispute of factual issues should preclude summary judgment, including the disputed fact of whether the program coordinator position required her to teach the course, none of her stated factual disputes are relevant to the timeliness of her claims. Rather, because the undisputed facts demonstrate that none of Tappan’s paychecks included additional stipends or wages for teaching the course, and because Tappan served ABOR with notice of her claim in January 2018, summary judgment was proper as claims that accrued before July 2017 were time barred by the notice of claim statute. See A.R.S. § 12-821.01(A). ¶14 Additionally, ABOR contends that because Tappan has been paid for her teaching duties since April 2017, Tappan has no viable claim for unpaid wages for periods in or after July 2017. We agree. Tappan’s claims after April 2017 are moot, as Tappan testified in her deposition that teaching the course is part of her new job duties as program director. Thus, although it would have been helpful to the parties and this appeal if the superior court had “state[d] on the record the reasons for granting [summary judgment],” because no genuine issue of material fact existed regarding whether Tappan received compensation for teaching the course from April 2017 forward, summary judgment for ABOR was appropriate. Ariz. R. Civ. P. 56(a). ¶15 Tappan next argues even if her claims were untimely, ABOR is equitably estopped from asserting the statute of limitations as a defense because Trainor’s statement in the summer of 2017 induced her to forbear filing suit. Like the statute of limitations, the notice of claim requirement is “subject to waiver, estoppel and equitable tolling.” Pritchard v. State, 163 Ariz. 427 , 432 (1990) (holding the time element with respect to filing a notice of claim is a procedural requirement subject to estoppel). Because equitable estoppel is an “equitable doctrine[], the trial court acts as the fact-finder and determines if [it] should apply.” Little v. State, 225 Ariz. 466 , 471, ¶ 16 (App. 2010); see also McCloud v. State, Ariz. Dep’t of Pub. Safety, 217 Ariz. 82 , 86, ¶ 9 (App. 2007) (concluding that because equitable estoppel sounds in equity, whether to apply equitable estoppel is a decision within the superior court’s discretion). ¶16 Tappan testified that she considered Trainor’s statement in the summer of 2017 to be a promise that she would receive additional 6  TAPPAN v. ABOR Decision of the Court compensation for teaching the course going forward. Because Trainor’s promise is the only statement upon which Tappan relies to support the tolling of the statutes of limitations, and because we have already determined that Tappan has no viable claims from April 2017 forward, supra ¶ 14, we conclude that equitable estoppel is inapplicable. Consequently, the superior court did not err in granting summary judgment in favor of ABOR. II. The Award of Costs Was Proper ¶17 Arizona statute provides the “successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law.” A.R.S. § 12-341. Costs are defined by statute and include the “[c]ost of taking depositions.” A.R.S. § 12-332(A)(2). Tappan concedes ABOR is entitled to costs under A.R.S. § 12-341. However, Tappan argues the superior court erred by considering certain expenses as taxable costs. ¶18 We review de novo whether an expense is included within the definition of taxable costs under A.R.S. § 12-332(A) because it is a question of law. Reyes v. Frank’s Serv. & Trucking, LLC, 235 Ariz. 605 , 608, ¶ 6 (App. 2014). However, a determination that a particular expense is factually within a category of taxable costs is reviewed for an abuse of discretion. Graville v. Dodge, 195 Ariz. 119 , 130, ¶ 53 (App. 1999). Here, Tappan challenges the inclusion of the following items as taxable costs: (1) deposition charges incurred by the court reporter (including the court reporter’s appearance fee, transcript related charges such as the inclusion of exhibit pages to the deposition transcripts and a PDF bundle of the transcripts, and a travel reimbursement); and (2) travel expenses incurred by ABOR in counsel’s travel to and overnight stay in Flagstaff for the depositions of Tappan and another NAU employee. ¶19 Tappan argues the court reporter’s costs and counsel’s travel expenses are not taxable “[c]osts of taking depositions” because they were not reasonably and necessarily incurred. A.R.S. § 12-332(A)(2). In particular, Tappan contends the court reporter’s travel expenses were unnecessary because ABOR should have used a local court reporter and that counsel’s travel expenses were unnecessary as counsel could have requested an alternative venue or driven to Flagstaff on the day of the depositions. ¶20 “[C]osts of depositions include fees for the court reporter and transcripts, reasonable travel expenses for attorneys and court reporters 7  TAPPAN v. ABOR Decision of the Court attending the deposition, and costs of copies of deposition transcripts.” Schritter v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391 , 392, ¶ 9 (2001); see also Fowler v. Great Am. Ins. Co., 124 Ariz. 111 , 114 (App. 1979) (holding that reasonable and necessary travel expenses incurred in taking depositions are recoverable under § 12-332(A)(2)). Whether travel expenses are reasonable and necessary is left to the discretion of the superior court, Fowler, 124 Ariz. at 114 , as is whether to allow the court reporter’s appearance fee and transcript related charges in its award of costs, see, e.g., Schritter, 201 Ariz. at 392, ¶ 9 . On this record, the court did not abuse its discretion. CONCLUSION ¶21 For the foregoing reasons, we affirm the superior court’s grant of summary judgment and the award of costs. Tappan’s requests for attorneys’ fees and costs incurred on appeal pursuant to A.R.S. §§ 12-341 and -348 are denied. As the prevailing party on appeal, ABOR may recover its costs upon compliance with Arizona Rule of Civil Appellate Procedure 21. AMY M. WOOD • Clerk of the Court FILED: AA 8

2020-12-03 17:01:44.107944+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2019-0463%20%20State%20v.%20Martinez%20-%20Memorandum%20Decision.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. ELISEO MARTINEZ, Appellant. No. 1 CA-CR 19-0463 FILED 12-3-2020 Appeal from the Superior Court in Maricopa County No. CR2018-130714-001 SE The Honorable Laura Johnson Giaquinto, Judge Pro Tempore AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Alice Jones Counsel for Appellee Maricopa County Public Defender’s Office, Phoenix By Jesse Finn Turner Counsel for Appellant  STATE v. MARTINEZ Decision of the Court MEMORANDUM DECISION Judge D. Steven Williams delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig joined. W I L L I A M S, Judge: ¶1 Eliseo Martinez appeals his conviction and sentence for possession of narcotic drugs. Martinez argues the superior court erred by denying his motion to suppress evidence purportedly obtained in violation of the Fourth Amendment. For reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Chandler Police Department Sergeant David Pilkington was on patrol when he heard over his radio a description of suspects involved in a nearby vehicle theft. The Sergeant then noticed two men walking along the street who generally matched the description. Pilkington stopped his vehicle and approached the men to investigate. ¶3 Pilkington asked the men, one of whom was Martinez, some general questions, before asking them to sit down. Two more officers arrived. At that point, the security guard who observed the occupants of the stolen vehicle and had provided their physical descriptions to police accompanied a police officer to the location where Pilkington was detaining Martinez and Noriega. After conducting a lineup procedure, the security guard was “unsure” whether Martinez and Noriega were the individuals he saw earlier in connection with the stolen vehicle. ¶4 Pilkington then asked Martinez and Noriega whether he could search them. 1 Martinez consented, and Pilkington found loose Oxycodone pills in his pants pocket. Martinez did not have a prescription for the pills. 1 At trial, the parties stipulated that Sergeant Pilkington and Martinez “engaged in a legal encounter[.]” Thus, the jury was not presented with details of the encounter. We consider evidence from the suppression hearing to describe those details. 2  STATE v. MARTINEZ Decision of the Court ¶5 The State charged Martinez with possession of narcotic drugs, a class 4 felony. Before trial, Martinez moved to suppress evidence of the pills, asserting the encounter with Pilkington violated his Fourth Amendment rights. The superior court conducted an evidentiary hearing on the motion where, in addition to other evidence, the State presented a video of the encounter captured by Pilkington’s body camera. The court denied the motion. ¶6 The jury subsequently found Martinez guilty as charged, and, given his prior criminal history, the court imposed a ten-year prison term. Martinez timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). DISCUSSION ¶7 Arguing the superior court erred by denying his motion to suppress, Martinez first contends Sergeant Pilkington lacked reasonable suspicion to lawfully detain him. Martinez also asserts he did not voluntarily consent to the search Pilkington conducted. We view the evidence presented at the suppression hearing and the reasonable inferences therefrom in the light most favorable to sustaining the ruling on the motion to suppress. State v. May, 210 Ariz. 452 , 454, ¶ 4 (App. 2005). ¶8 The Fourth Amendment prohibits the police from making unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1 , 9 (1968). The exclusionary rule prohibits the introduction of evidence seized in violation of a person’s Fourth Amendment rights. State v. Hackman, 189 Ariz. 505 , 508 (App. 1997). An investigatory stop is a seizure that is justified under the Fourth Amendment if it is “‘supported by reasonable suspicion’ that criminal activity is afoot.” State v. Rogers, 186 Ariz. 508 , 510 (1996) (quoting Ornelas v. United States, 517 U.S. 690 , 693 (1996)). ¶9 The reasonable suspicion necessary to justify an investigatory stop is based on the totality of the circumstances such that the investigating officers can demonstrate “‘a particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266 , 273 (2002) (quoting United States v. Cortez, 449 U.S. 411 , 417–18 (1981)). We consider “such objective factors as the suspect’s conduct and appearance, location, and surrounding circumstances, such as the time of day, and taking into account the officer’s relevant experience, training, and knowledge.” State v. Fornof, 218 Ariz. 74 , 76, ¶ 6 (App. 2008). Further, the grounds for a stop must be based on “a justifiable suspicion that the 3  STATE v. MARTINEZ Decision of the Court particular individual to be detained is involved in criminal activity.” Id. at 76, ¶ 5 (emphasis omitted) (quoting State v. Graciano, 134 Ariz. 35 , 37 (1982)). ¶10 A consensual encounter between a police officer and a citizen is not a “seizure” for Fourth Amendment purposes. Florida v. Bostick, 501 U.S. 429 , 434 (1991). Similarly, a consensual search generally does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Schneckloth v. Bustamonte, 412 U.S. 218 , 219 (1973) (noting that a search conducted without a warrant is unreasonable unless it is conducted pursuant to consent). ¶11 A ruling on a motion to suppress will not be reversed on appeal absent an error constituting an abuse of discretion. State v. Zamora, 220 Ariz. 63 , 67, ¶ 7 (App. 2009). I. The Investigatory Stop: Reasonable Suspicion ¶12 The specific issue of “whether the police had a reasonable suspicion of criminal activity that justified conducting an investigatory stop is a mixed question of law and fact which we review de novo.” Rogers, 186 Ariz. at 510 . ¶13 According to the evidence at the suppression hearing, Sergeant Pilkington saw two males—Martinez and Noriega—within minutes after learning a witness reported seeing white or Hispanic males running from a stolen vehicle one-half mile away. It was approximately 1:30 a.m., and aside from Martinez and Noriega, no other pedestrians were in the area. Also, Pilkington testified that Martinez appeared “very nervous” upon seeing Pilkington approach in his patrol vehicle. ¶14 Martinez and Noriega also generally matched the description of the vehicle theft suspects. For example, the suspects were described as two Hispanic males, approximately five feet seven inches tall, one wearing “a plaid shirt and dark-colored pants,” the other wearing a white T-shirt and blue jean pants. Martinez was wearing a hat, a white T-shirt with blue lettering, and dark-colored pants. Noriega was wearing long, dark-colored jean shorts, and his socks were pulled up, which, in combination, Sergeant Pilkington described as looking like pants from a distance. ¶15 To be sure, there were differences between the suspects’ descriptions and Martinez’s and Noriega’s appearances. Only one of the suspects was described as wearing a hat—one that bore a “Cardinals” logo—while Martinez and Noriega were both wearing hats, neither of which had such a logo. Martinez was carrying a “rather large pole,” and 4  STATE v. MARTINEZ Decision of the Court Noriega was carrying a backpack, although neither item was included in the description of the suspects involved in the vehicle theft. Martinez was six feet one inch tall. ¶16 Focusing on those discrepancies, Martinez argues Sergeant Pilkington lacked the reasonable suspicion necessary to conduct the investigatory stop. However, a perfect match to a suspect’s physical attributes is not required to justify an investigatory stop. See State v. Kinney, 225 Ariz. 550 , 556, ¶ 15 (App. 2010) (upholding investigatory detention based on totality of circumstances where defendant “somewhat matched” suspect’s physical description). And Pilkington testified at the suppression hearing that, based on his training and experience, police will generally stop and investigate individuals who match a suspect’s description “somewhat, but not 100%.” Specifically, Pilkington testified that Martinez and Noriega “matched the [suspects’] description close enough to warrant further investigation[.]” ¶17 Under the totality of the circumstances, notably the lack of other people in the area when Pilkington encountered Martinez shortly after the suspects were observed running from a stolen vehicle one-half mile away, coupled with Martinez’s general similarity to the description of the suspects, Pilkington had a sufficiently specific and objective basis to suspect that Martinez may have been involved in the theft. Pilkington’s suspicion was therefore reasonable. See State v. Ramsey, 223 Ariz. 480 , 484, ¶ 18 (App. 2010) (standard for reasonable suspicion is lower than that required for probable cause and requires a showing that is considerably less than a preponderance of the evidence). The investigatory stop was justified under the Fourth Amendment. II. The Search: Voluntary Consent ¶18 Martinez next challenges Sergeant Pilkington’s search of his pockets, arguing the superior court erred by finding the search was consensual. Martinez contends that, to the contrary, he “merely acquiesce[d] to a claim of lawful authority.” According to Martinez, he was subject to “continu[al] . . . commands” during the encounter with Pilkington. Additionally, Martinez notes he observed Pilkington search Noriega before telling Noriega he could leave. Thus, when Sergeant Pilkington told Martinez, “You’re going to be good to go,” before asking to search him, Martinez contends he submitted to the search believing it was necessary to end his detention. Thus, Martinez claims his consent was involuntary. 5  STATE v. MARTINEZ Decision of the Court ¶19 We consider the totality of the circumstances to determine whether the superior court properly determined that a person voluntarily consents to a search. State v. Acinelli, 191 Ariz. 66 , 70 (App. 1997). ¶20 The record is consistent with one aspect of Martinez’s description of the encounter: Sergeant Pilkington testified at the suppression hearing that he told Martinez, “You’re going to be good to go,” before asking if he could search Martinez’s pockets. Pilkington further testified that, in response to his request, Martinez “put his arms out in a -- almost like an airplane-type of fashion,” which Pilkington construed as implied consent to conduct the search. ¶21 But contrary to Martinez’s assertion that he was subject to a demonstration of Sergeant Pilkington’s authority as a police officer, the video of the encounter shows Pilkington did not convey at any time that compliance with his requests was required. He never brandished a weapon, made threats, or used aggressive language; rather, he was cordial and polite during the entire encounter. And although Pilkington did inform Martinez “You’re going to be good to go,” the United States Supreme Court “has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.” United States v. Drayton, 536 U.S. 194 , 206 (2002). ¶22 Considered in context with the encounter’s non-threatening atmosphere, Sergeant Pilkington’s statement cannot reasonably be interpreted as a demand that Martinez submit unwillingly to a search before being allowed to leave. Accordingly, in reviewing the totality of the circumstances, there was sufficient evidence for the superior court to find, implicit in its order denying the motion to suppress, that Martinez voluntarily consented to the search of his person. See H.M.L. v. State, 131 Ariz. 385 , 387 (App. 1981) (this court implies findings of fact and conclusions of law, which are reasonably supported by the record, to support superior court’s judgment). The search, therefore, complied with the Fourth Amendment. 6  STATE v. MARTINEZ Decision of the Court CONCLUSION ¶23 For the foregoing reasons, we affirm Martinez’s conviction and sentence. AMY M. WOOD • Clerk of the Court FILED: AA 7

2020-12-03 18:00:25.975209+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/17-50336.pdf

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50336 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00598- AB-1 MONIQUE A. LOZOYA, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding Submitted En Banc May 26, 2020 * San Francisco, California Filed December 3, 2020 Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, William A. Fletcher, Jay S. Bybee, Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Mark J. Bennett, Daniel P. Collins and Kenneth K. Lee, Circuit Judges. Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Ikuta * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. LOZOYA SUMMARY ** Criminal Law The en banc court affirmed a conviction for misdemeanor assault within the special aircraft jurisdiction of the United States, in a case in which the defendant, who committed the assault on a commercial flight from Minneapolis to Los Angeles, argued that venue in the Central District of California was improper because the assault did not occur in airspace directly above the Central District. The en banc court held that the Constitution does not limit venue for in-flight federal crimes to the district sitting directly below a plane at the moment a crime was committed, and that venue thus “shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. art. III, § 2, cl. 3. The en banc court held that the second paragraph of 18 U.S.C. § 3237 (a) applies to federal crimes committed on commercial aircraft within the special aircraft jurisdiction of the United States, and that such crimes may be prosecuted in the flight’s landing district. Dissenting in part and concurring in the judgment, Judge Ikuta, joined by Judges Collins and Lee, wrote that under the correct venue statute, 18 U.S.C. § 3238 , the trial for an assault on a cross-country flight can be held only where the defendant “is arrested or is first brought,” or where the defendant resides. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  UNITED STATES V. LOZOYA 3 COUNSEL Hilary Potashner, Federal Public Defender; James H. Locklin, Deputy Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant. Nicola T. Hanna, United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Karen E. Escalante, Assistant United States Attorney, Major Frauds Section; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee. OPINION BENNETT, Circuit Judge: Defendant Monique Lozoya committed an assault on an airplane. She was traveling on a commercial flight from Minneapolis to Los Angeles when she argued with another passenger and slapped him in the face. Lozoya was convicted of misdemeanor assault in the Central District of California, where the plane landed. On appeal, Lozoya argues that venue in the Central District was improper because the assault did not occur in airspace directly above the Central District. We hold that venue for in-flight federal offenses is proper in the district where a plane lands, and affirm Lozoya’s conviction. FACTS AND PROCEDURAL BACKGROUND On July 19, 2015, Lozoya and her boyfriend were flying home to California from Minneapolis. Their Delta Airlines flight to Los Angeles was scheduled for about three-and-a- 4 UNITED STATES V. LOZOYA half hours, the route taking them over Minnesota, Iowa, Nebraska, Colorado, Utah, Arizona, Nevada, and California. Lozoya wanted to sleep, but claimed the passenger behind her, Oded Wolff, kept jabbing at his touchscreen monitor attached to the back of her seat. Each jab startled her awake. In the middle of the flight—Lozoya estimated an hour before landing, her boyfriend about two hours, and a flight attendant ninety minutes—Lozoya turned to Wolff, who had just returned from the bathroom, and asked him to stop banging on her seat. An argument ensued, and Lozoya slapped Wolff’s face. Flight attendants intervened. After the plane landed at LAX, Lozoya and Wolff went their separate ways. Wolff reported the incident to the FBI, which issued Lozoya a violation notice charging her with misdemeanor assault within the special aircraft jurisdiction of the United States. See 18 U.S.C. § 113 (a)(5); 49 U.S.C. § 46506 . Lozoya’s bench trial took place in the flight’s landing district, the Central District of California. After the government rested, Lozoya moved for acquittal, claiming the government had not established venue in the Central District. See Fed. R. Crim. P. 29. The magistrate judge presiding over the trial denied the motion and ruled that venue was proper because the flight “came to an end” in the Central District. Lozoya was convicted and sentenced to pay a fine of $750. She then appealed to the district court, again arguing that venue was improper in the Central District. The district court found that venue was proper because the plane had landed in the Central District and affirmed the conviction. A divided three-judge panel of our court, however, agreed with Lozoya that venue was improper and reversed the conviction on that ground. United States v.  UNITED STATES V. LOZOYA 5 Lozoya, 920 F.3d 1231 , 1243 (9th Cir. 2019). We took this case en banc. We have jurisdiction under 28 U.S.C. § 1291 and review de novo whether venue was proper in the Central District of California. See United States v. Ruelas-Arreguin, 219 F.3d 1056 , 1059 (9th Cir. 2000). “Venue is a question of fact that the government must prove by a preponderance of the evidence.” United States v. Lukashov, 694 F.3d 1107 , 1120 (9th Cir. 2012). DISCUSSION The assault took place on a commercial flight in the “special aircraft jurisdiction of the United States.” 49 U.S.C. § 46501 (2). Decades ago, at the onset of the “age of jet aircraft,” Congress recognized that crimes committed in the skies raise difficult questions: “Although State criminal statutes generally cover crimes committed on board aircraft in flight over the State, the advent of high-speed, high- altitude flights of modern jet aircraft has complicated the problem of establishing venue for the purposes of prosecution. In some recent instances, serious offenses have gone unpunished because it was impossible to establish to any reasonable degree of accuracy the State over which the crime was committed.” H.R. Rep. 87-958 (1961), reprinted in 1961 U.S.C.C.A.N. 2563, 2564. Congress chose to federalize certain offenses committed on airplanes, including murder, sexual assault, and Lozoya’s crime— simple assault. See id. at 2563 ; 49 U.S.C. § 46506 . Lozoya contends that venue is proper only in the federal district over which the in-flight assault occurred, which was 6 UNITED STATES V. LOZOYA not the Central District.1 We reject that contention. Under 18 U.S.C. § 3237 (a), venue is proper in the landing district, here the Central District of California. Thus, we affirm Lozoya’s conviction. 2 I. Constitutional Requirements Criminal venue mattered to the Framers, who complained in the Declaration of Independence that King George transported colonists “beyond Seas to be tried.” The Declaration of Independence, para. 21 (U.S. 1776). The Framers designed a system that requires trial in the vicinity of the crime, “to secure the party accused from being dragged to a trial in some distant state, away from his friends, witnesses, and neighborhood.” United States v. Muhammad, 502 F.3d 646 , 652 (7th Cir. 2007) (quoting Joseph Story, Commentaries on the Constitution § 925 (Carolina Academic Press reprint 1987) (1833)). The Constitution safeguards a criminal defendant’s venue right in two places. The Venue Clause of Article III, Section 2 provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth 1 It is undisputed that the assault happened before the plane entered airspace above the Central District, but it is unclear which district was below the plane during the assault. 2 We exercise our discretion to consider only this issue. See Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002); see also Rand v. Rowland, 154 F.3d 952 , 954 n.1 (9th Cir. 1998) (en banc). Parts I and II.A of the panel majority opinion, concerning the Speedy Trial Act and waiver issues, United States v. Lozoya, 920 F.3d 1231 , 1236–38 (9th Cir. 2019), are not affected by our en banc review and are not withdrawn.  UNITED STATES V. LOZOYA 7 Amendment’s Vicinage Clause further requires that the defendant be tried by an “impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Under these two provisions, criminal trials generally must take place in the same state and district where the crime took place. But if the crime was “not committed within any State,” the Constitution provides that “the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. art. III, § 2, cl. 3. The Constitution does not discuss the airspace over the several states. Nor did the Framers contemplate crimes committed in the “high skies,” even as they granted Congress the power to “define and punish Piracies and Felonies committed on the high Seas.” U.S. Const. art. I, § 8, cl. 10. Lozoya’s crime would have been alien to the Framers. It happened on an airplane flying almost 600 miles an hour, five miles above the earth. And it occurred over one of several states or districts, depending on the time of the slap. In Lozoya’s view, the Constitution requires trial in the district over which the plane was flying at the exact moment of the assault. Her crime was committed in the airspace above a district, the argument goes, so that district was the location of her crime. Implicit in this reasoning is an interpretation of Article III and the Sixth Amendment that a state or district includes the airspace above it for constitutional venue purposes. Lozoya was not tried in the flyover district but in the Central District of California, where the plane landed and where she lived and worked. Lozoya thus argues that venue was constitutionally improper because her trial did not take place in the state and district where her crime took place. 8 UNITED STATES V. LOZOYA We disagree. Neither Article III nor the Sixth Amendment says that a state or district includes airspace, and there is, of course, no indication that the Framers intended as such. 3 Indeed, the very purpose of the Constitution’s venue provisions—to protect the criminal defendant from “the unfairness and hardship to which trial in an environment alien to the accused exposes him”—is thwarted by limiting venue to a flyover district in which the defendant never set foot. United States v. Johnson, 323 U.S. 273 , 275 (1944). For crimes committed on planes in flight, the Constitution does not limit venue to the district directly below the airspace where the crime was committed. And thus venue “shall be at such Place or Places as the Congress may by Law have directed.” 4 U.S. Const. art. III, § 2, cl. 3. 3 Our decision in United States v. Barnard, 490 F.2d 907 (9th Cir. 1973), does not help Lozoya’s argument. In Barnard, we interpreted 18 U.S.C. § 3237 (a), which provides that offenses involving transportation in foreign commerce may be prosecuted in “any district from, through, or into which such commerce . . . moves.” Barnard concluded that under the statute, a drug-smuggling plane moved “through” a district when the plane flew over it, because “the navigable airspace above that district is a part of the district.” 490 F.2d at 911. Barnard did not purport to interpret Article III or the Sixth Amendment in reaching that holding. 4 We are puzzled by the dissent’s baggage handler hypothetical, in which a rogue baggage handler, “standing on the tarmac at Los Angeles International Airport,” aims a laser at an aircraft during takeoff. Dissent at 37. The dissent concedes that “the baggage handler’s offense was committed in California, and because the Venue Clause’s exception for offenses ‘not committed within any state’ is inapplicable, it must be tried in California.” Dissent at 37 (emphasis added). We agree: the hypothetical crime was committed in California; thus the Constitution requires that it be tried in California. The inquiry ends there. Despite  UNITED STATES V. LOZOYA 9 II. Statutory Requirements 18 U.S.C. § 3237 (a) contains two paragraphs, each covering a different type of offense. First, “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” Id. Second, “[a]ny offense involving . . . transportation in interstate or foreign commerce . . . is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce . . . moves.” Id. Two of our sister circuits, the Tenth and the Eleventh, have held that the second paragraph of § 3237(a) applies to in-flight crimes because the crimes “took place on a form of transportation in interstate commerce.” United States v. Breitweiser, 357 F.3d 1249 , 1253 (11th Cir. 2004) (“Congress has provided a means for finding venue for crimes that involve the use of transportation. The violations of the statutes here [abusive sexual contact and simple assault of a minor] are ‘continuing offenses’ under 18 U.S.C. § 3237 .”); see also United States v. Cope, 676 F.3d 1219 , 1225 (10th Cir. 2012). In both these cases, the court upheld venue in the district where the airplane landed, rather than requiring the government to show “exactly which federal district was beneath the plane when [the defendant] recognizing that Congress’s venue statutes do not apply when the Constitution settles the issue, the dissent goes on to apply an inapplicable statute and argues that it does not lead to the correct result. There is of course no requirement to “reconcile” a hypothetical result under an inapplicable statute. See Dissent at 38. 10 UNITED STATES V. LOZOYA committed the crimes.” Breitweiser, 357 F.3d at 1253 ; see also Cope, 676 F.3d at 1225 . We join the Tenth and Eleventh Circuits and conclude that the second paragraph of 18 U.S.C. § 3237 (a) applies to federal crimes committed on commercial aircraft within the special aircraft jurisdiction of the United States. Lozoya’s crime “involved” transportation in interstate commerce under a plain meaning reading of the word “involve.” See American Heritage Dictionary (5th ed. 2019) (defining “involve” as “[t]o relate to or affect”). Not only did the crime take place on a form of interstate transportation, the assault is a federal offense only because it was committed within the special aircraft jurisdiction of the United States. See 49 U.S.C. § 46506 . But for the interstate transportation, Lozoya could not have committed this crime. An offense whose very definition requires interstate transportation certainly “involves” transportation in interstate commerce. That the dissent disagrees with Congress’s broad definition of “continuing offense” is of no import. The dissent believes that a continuing offense should be defined as “one which was committed in more than one state” or locality. Dissent at 35–36. But that is simply not the definition that Congress adopted in the second paragraph of § 3237(a), which provides that “[a]ny offense involving . . . transportation in interstate or foreign commerce . . . is a continuing offense.” 5 Rather, the dissent’s definition is almost identical to the first paragraph of § 3237(a), covering 5 The dissent insists that our interpretation is “strained” and characterizes it as the following: “[T]he majority has interpreted the phrase ‘continuing offense’ in § 3237 to include any offense . . . involving transportation in interstate or foreign commerce.” Dissent at 36, 40. We note that is literally what the statute says.  UNITED STATES V. LOZOYA 11 offenses “begun in one district and completed in another, or committed in more than one district.” 18 U.S.C. § 3237 (a); see also United States v. Rodriguez-Moreno, 526 U.S. 275 , 282 (1999). Here, we are not concerned with the first paragraph but with the second. Under the second paragraph of § 3237(a), venue was proper in the Central District of California, through and into which the plane moved. 6 Our holding is consistent not only with the Tenth and Eleventh Circuits’ decisions, but also with the near-universal practice of landing district prosecution. For decades, and since Congress federalized certain offenses committed in the air, federal offenders have been prosecuted and tried in the landing districts. Venue in the landing district is plainly sensible: it is where arrests are made and witnesses interviewed, and is often the defendant’s residence or travel 6 Where the Constitution does not mandate venue in a particular district, Congress has broad latitude to define the locality of a crime. See, e.g., 48 U.S.C. § 644a (providing that “all offenses and crimes committed” on certain Pacific islands, including the Midway Islands, Wake Island, Johnston Island, and Palmyra Island, “shall be deemed to have been consummated or committed on the high seas on board a merchant vessel or other vessel belonging to the United States”). The dissent relies on United States v. Johnson, 323 U.S. 273 (1944), to narrow Congress’s language in the second paragraph of § 3237(a). See Dissent at 33–34. Johnson did not interpret the second paragraph of § 3237(a) because it did not exist when Johnson was decided. That Congress wrote the second paragraph in response to Johnson does not mean that the second paragraph must be limited by Johnson’s specific context and discussion. And the Johnson Court did not require that Congress adopt any particular definition. See Johnson, 323 U.S. at 275 . Further, the dissent’s analysis of Johnson contradicts the dissent’s own argument that the second paragraph of § 3237(a) “defines a particular category of offenses” that “fall within the more generally framed rule set forth in the first paragraph.” Dissent at 34. If that were true, then Congress would not have needed to add the second paragraph after Johnson because both paragraphs would yield the same result. 12 UNITED STATES V. LOZOYA destination. In our research, we found examples of landing district venue in every circuit except the D.C. Circuit (the District of Columbia has no commercial airports), and discovered no court that has prohibited venue in the landing district. 7 By contrast, flyover prosecution is virtually unheard of, for good reason. 8 To establish venue under Lozoya’s theory, the government must determine exactly when the crime was committed, use flight tracking sources to pinpoint the plane’s longitude and latitude at that moment, and then look down five miles to see which district lay below. Lozoya dismisses the government’s concerns about the difficulty of the task as “hyperbolic,” suggesting that the time of the 7 See, e.g., United States v. Jahagirdar, 466 F.3d 149 (1st Cir. 2006) (sexual assault); United States v. Cohen, No. 07-cr-5561, 2008 WL 5120669 (2d Cir. Dec. 8, 2008) (sexual assault); United States v. Aksal, 638 F. App’x 136 (3d Cir. 2015) (sexual assault); United States v. Jennings, 496 F.3d 344 (4th Cir. 2007) (sexual abuse of a minor); United States v. Stewart, No. 02-CR-046, 2002 U.S. Dist. LEXIS 20220 (N.D. Tex. Oct. 21, 2002) [5th Cir.] (sexual assault); United States v. Anderson, 503 F.2d 420 (6th Cir. 1974) (attempted manslaughter); United States v. Barberg, 311 F.3d 862 (7th Cir. 2002) (sexual assault); United States v. Kokobu, 726 F. App’x 510 (8th Cir. 2018) (per curiam) (simple assault); United States v. Lozoya, No. 16-00598 (C.D. Cal. Sept. 8, 2017), rev’d, 920 F.3d 1231 (9th Cir. 2019); United States v. Johnson, 458 F. App’x 727 (10th Cir. 2012) (interference with flight crewmember and sexual assault); United States v. Breitweiser, 357 F.3d 1249 (11th Cir. 2004) (sexual abuse of a minor and simple assault). 8 We acknowledge that § 3237(a) theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts. But we are not aware of any cases where the government prosecuted an in-flight crime in a flyover district with which the defendant had no ties. And in the event that a choice of venue implicates concerns about fairness or inconvenience, the defendant can request a transfer of venue. See Fed. R. Crim. P. 21(b).  UNITED STATES V. LOZOYA 13 crime can be determined using witness testimony and some math. The witnesses, however, gave different estimates of when the slap occurred. Lozoya’s flight from Minneapolis to Los Angeles crossed at least eight districts in about three- and-a-half hours. In the span of an hour—the difference between the estimates of two witnesses—an airplane can easily fly over multiple states and districts. A flyover venue rule would unreasonably burden the victims of in-flight crimes and the interests of justice. Of particular concern are victims of sexual assault. According to the FBI, reports of sexual assault on commercial flights are at an all-time high. 9 Sexual assaults are most common on long-haul flights when the victim is sleeping and covered by a blanket or jacket. Sometimes there are no witnesses. Victims report waking up disoriented and realizing in horror that they were assaulted by a seatmate. Proving the precise time of an assault could be impossible, and a flyover venue rule could mean no prosecution at all. The venue statute cited by the dissent, 18 U.S.C. § 3238 , is inapplicable here. Section 3238 applies to “offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district,” id., and we have held that it applies only if “the offense was committed entirely on the high seas or outside the United States (unless, of course, the offense was ‘begun’ there).” United States v. Pace, 314 F.3d 344 , 351 (9th Cir. 2002). Lozoya’s offense was not committed on the high seas, and 9 Sexual Assault Aboard Aircraft, Federal Bureau of Investigation (Apr. 26, 2018), https://www.fbi.gov/news/stories/raising-awareness- about-sexual-assault-aboard-aircraft-042618. 14 UNITED STATES V. LOZOYA for obvious reasons, we decline to hold that airspace above the United States is “outside the United States.” Although the dissent disagrees with Pace’s conclusion that § 3238 applies to crimes outside the United States, our interpretation in Pace is consistent with that of our sister circuits and the legislative history of § 3238. 10 As the dissent notes, Congress most recently amended § 3238 in 1963, to address (1) crimes committed by more than one offender, and (2) crimes committed by an offender who remains abroad. Dissent at 27. The Senate Report accompanying the 1963 amendments expressly stated that § 3238 was intended to cover extraterritorial crimes: “The purpose of the bill is to (1) permit the indictment and trial of an offender or joint offenders who commit abroad offenses against the United States, in the district where any of the offenders is arrested or first brought; (2) to prevent the statute of limitations from tolling in cases where an offender or any of the joint offenders remain beyond the bounds of the United States by permitting the filing of information or indictment in the last known residence of any of the 10 See United States v. Miller, 808 F.3d 607 (2d Cir. 2015) (concluding that “the history and text of § 3238 do make clear, at the very least, that the statute focuses on offense conduct outside of the United States,” id. at 619, and “[s]ection 3238 may apply even when certain offense conduct occurs in the United States, if the criminal acts are nonetheless ‘essentially foreign,’” id. at 621); United States v. Holmes, 670 F.3d 586 , 594 (4th Cir. 2012) (“We begin, as we must, with the text of § 3238, which establishes that venue for extraterritorial offenses ‘shall be in the district in which the offender . . . is arrested or is first brought.’”); United States v. Layton, 519 F. Supp. 942 , 944 (N.D. Cal. 1981) (“The apparent purpose of [§ 3238], however, is simply to provide an arbitrary rule of venue for offenses committed outside of the United States.”).  UNITED STATES V. LOZOYA 15 offenders.” 11 S. Rep. No. 88-146 (1963), reprinted in 1963 U.S.C.C.A.N. 660, 660 (emphases added). Moreover, § 3238 by its terms applies to crimes committed “out of the jurisdiction of any particular State or district,” but the states routinely assert jurisdiction over crimes committed in airspace. See, e.g., N.J. Stat. Ann. § 6:2-9 (“All crimes, torts, and other wrongs committed by or against an airman or passenger while in flight over this state shall be governed by the laws of this state.”); Fla. Stat. § 860.13 (criminalizing the “[o]peration of aircraft while intoxicated or in careless or reckless manner”); Marsh v. State, 620 P.2d 878 , 879 (N.M. 1980) (“Although the Federal Aviation Act of 1958 was amended to extend federal criminal laws to certain acts committed on board aircraft, this legislation was not intended to preclude state prosecution for the same crimes.” (citation omitted)). There is no indication that Congress, when it amended § 3238 in 1963, believed that airspace above a state is “out of the jurisdiction” of that state. Indeed, when Congress amended the Federal Aviation Act in 1961 to federalize certain in-flight criminal acts, it recognized that crimes 11 The dissent admits that the two amendments exclusively address extraterritorial crimes, but insists that the new language added in 1963, irrelevant here, provides the extraterritoriality requirement. Dissent at 31. This is wrong. For example, one of the two amendments added the following italicized language: “The trial of all offenses begun or committed . . . out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought[.]” 18 U.S.C. § 3238 (emphasis added). The added language clearly refers to the number of offenders and not to the extraterritorial location of the crime. Thus, Pace and our sister circuits correctly interpreted “out of the jurisdiction of any particular State or district”—the relevant language here—as referring to places outside of the United States. 16 UNITED STATES V. LOZOYA committed in airspace are within the jurisdiction of the states: The offenses punishable under this legislation would not replace any State jurisdiction but would, where both Federal and State law provided for punishment for the same act, be in addition to the State criminal law. * * * We wish to emphasize that it is not our intent to divest the States of any jurisdiction they now have. This legislation merely seeks to give the Federal Government concurrent jurisdiction with the States in certain areas where it is felt that concurrent jurisdiction will contribute to the administration of justice and protect air commerce. H.R. Rep. 87-958 (1961), reprinted in 1961 U.S.C.C.A.N. 2563, 2564–65. 12 We think it unwise to divest states of their 12 At that time, the Federal Aviation Act included a special venue provision containing language almost identical to § 3238: “[I]f the offense is committed out of the jurisdiction of any particular State or district, the trial shall be in the district where the offender, or any one of two or more joint offenders, is arrested or is first brought.” 49 U.S.C. § 1473 (a) (repealed 1994). Legislative history shows that Congress understood “committed out of the jurisdiction of any particular State or district” to mean “where . . . offenders commit an offense abroad”—just as it understood § 3238. H.R. Rep. 87-958 (1961), reprinted in 1961 U.S.C.C.A.N. 2563, 2577. In the context of aviation, “abroad” naturally refers to foreign airspace and not United States airspace.  UNITED STATES V. LOZOYA 17 jurisdiction, and dangerous to do so by holding that the airspace above them is not within the United States. The dissent insists that its interpretation does not divest states of their jurisdiction, despite that it requires concluding that airspace is “out of the jurisdiction of any particular State” in order for § 3238 to apply. According to the dissent, such a paradoxical reading is required because the “text and statutory history of § 3238 show that its scope is coextensive with the Venue Clause.” Dissent at 29–30. The text is certainly not coextensive. The text of the Venue Clause is “not committed within any State,” and the text of § 3238 is “elsewhere out of the jurisdiction of any particular State or district”—the key word is “jurisdiction.” The dissent ignores the statute’s clear text and argues that the word “jurisdiction” actually means “territory,” relying on a 170- year-old Supreme Court decision interpreting a predecessor statute. Dissent at 26, 29–30. Untethering the word from its meaning turns the statute upside down, leading to the dissent’s perplexing conclusion that a state can retain jurisdiction to prosecute crimes that are committed “out of the jurisdiction of any particular State.” 13 The dissent contends that legislative history, our decision in Pace, and our sister circuits’ decisions are all wrong, unreasoned, or dicta. See Dissent at 29 n.9. In the dissent’s view, we need not consult any of these sources 13 According to the dissent, § 3238’s “offenses begun or committed . . . elsewhere out of the jurisdiction of any particular State” has nothing to do with “whether the State has the authority to prosecute the offense.” Dissent at 30 (emphasis added). The dissent claims that “the text” compels this interpretation. Dissent at 30. This interpretation, in turn, is the basis of the dissent’s equally perplexing argument that we rewrote the statutory text by reading “jurisdiction” to mean “jurisdiction.” Dissent at 25. 18 UNITED STATES V. LOZOYA because the statutory text clearly supports the dissent’s interpretation. See Dissent at 25. That is, the dissent believes that § 3238’s “out of the jurisdiction of any particular State or district” clearly refers to a place (i) within the United States (ii) but “not within a state,” (iii) yet also within the jurisdiction of the states. 14 Dissent at 26 (emphasis added), 29, 30 n.10. We cannot find such a peculiar place in the statute’s clear text, and we are unaware of any court that has. 15 We hold that under 18 U.S.C. § 3237 (a), venue for in- flight federal crimes is proper in the landing district. We adopt here a venue rule that is tethered to the Constitution, comports with the decisions of our sister circuits, and is consistent with common sense and the interests of justice. CONCLUSION The Constitution does not limit venue for in-flight federal crimes to the district sitting directly below a plane at the moment a crime was committed. Such in-flight crimes are covered by 18 U.S.C. § 3237 (a) and may be prosecuted in the flight’s landing district. We therefore conclude that 14 The dissent’s interpretation requires concluding that all of these things are simultaneously true about airspace (and that all contrary legal authority is wrong). Otherwise, the dissent would have to conclude that United States airspace is extraterritorial or that states can no longer assert jurisdiction over airspace. 15 Nor does the government’s petition for rehearing en banc—which relies exclusively on § 3237(a)—argue for the dissent’s interpretation of § 3238.  UNITED STATES V. LOZOYA 19 venue was proper in the Central District of California and affirm the district court. AFFIRMED. IKUTA, Circuit Judge, with whom COLLINS and LEE, Circuit Judges, join, dissenting in part and concurring in the judgment: This case requires us to determine where a criminal case must be adjudicated when a discrete federal offense occurs on an aircraft flying through the airspace above a particular state. Under 49 U.S.C. § 46506 , Congress has made simple assault a federal crime if the assault occurs “on an aircraft in the special aircraft jurisdiction of the United States.” 49 U.S.C. § 46506 ; 18 U.S.C. § 113 (a)(5). The majority holds that venue for this crime is proper in any district the airplane traveled from, through, or into, meaning that the trial for an assault on a cross-country flight can be held in any flyover state. See Maj. at 12 n.8 (acknowledging that 18 U.S.C. § 3237 (a) “theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts”). Congress did not direct such an absurd result; rather, under the correct venue statute, the trial for an assault on a cross-country flight can be held only where the defendant “is arrested or is first brought,” or where the defendant resides. 18 U.S.C. § 3238 . Therefore, I dissent from the majority’s reasoning. I Article III’s Venue Clause provides that: “[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed,” U.S. Const. art. III, § 2, 20 UNITED STATES V. LOZOYA cl. 3, and the Sixth Amendment further specifies that crimes committed within a state must be tried in the “district wherein the crime shall have been committed, which district shall have been previously ascertained by law,” U.S. Const. amend. VI. There is only one exception to this general rule: when the crimes are “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. art. III, § 2, cl. 3. 1 Monique Lozoya assaulted a fellow passenger while on an aircraft in flight, and it is undisputed that Lozoya did not commit this offense in California. Therefore, the Venue Clause does not allow Lozoya’s trial to be held in California, unless: (1) Lozoya’s offense was “not committed within any state,” and (2) Congress directed that the trial could be held in California. II. To determine whether the exception to the Venue Clause’s general rule applies, we first ask whether Lozoya’s offense was “not committed within any State.” For the reasons explained below, when criminal conduct occurs in navigable airspace, the crime is “not committed within any State,” U.S. Const. art. III, § 2, cl. 3, and Congress may 1 The Venue Clause provides, in full: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. U.S. Const. art. III, § 2, cl. 3.  UNITED STATES V. LOZOYA 21 designate the venue for such a crime, Maj. at 8, at least when the crime has no effect on the ground below. 2 The Venue Clause is ambiguous when applied to an offense that took place in an airplane flying over the United States, and some of our usual tools for interpreting legal texts are not helpful here. We can be confident that, when the Constitution was adopted in 1789, the public had no view regarding whether a crime committed at cruising altitude in navigable airspace was committed within a state under the Venue Clause. While some contemporaneous sources indicate that “the jurisdiction of a state is co-extensive with its territory,” United States v. Bevans, 16 U.S. 336 , 386–87 (1818), and therefore a crime committed within the jurisdiction of a state might be deemed to be committed within that state’s territory for purposes of the Venue Clause, these sources do not indicate whether a state’s jurisdiction extended to offenses occurring exclusively at 30,000 feet. To be sure, “at common law ownership of the land extended to the periphery of the universe,” Causby, 328 U.S. at 260, but this principle must be understood against the backdrop of the sorts of above-the-ground activities contemplated at 2 For present purposes, we need not resolve the question whether crimes on airplanes that have an on-the-ground effect within a state’s territory are committed within the state, such as when a plane is used for unlawfully spraying agricultural pesticides over land, see Charles F. Krause, Aviation Tort and Reg. Law § 14:49 (2d ed. 2020), when flyover activities affect residents, see United States v. Causby, 328 U.S. 256 , 258 (1946), or when an offense occurs partly on the ground and partly on an aircraft, see, e.g., 49 U.S.C. § 46505 (criminalizing carrying concealed weapons or explosives aboard aircraft, which may also violate state laws). An offense such as the one at issue here, committed wholly within a plane flying miles above any state, has no impact on the territory of the state below, and therefore does not raise this question. 22 UNITED STATES V. LOZOYA the time. 3 Given that technology has changed dramatically since the founding—in addition to aircraft, both satellites and spaceships now regularly invade the airspace between the land below and “the periphery of the universe,” id.—this common law principle is not entitled to much weight in this context. Indeed, the Supreme Court has indicated that this common law principle may not be relevant to the modern use of navigable airspace. See id. at 261 . We are left to rely on what the Framers’ contemporaries would have understood to be the purpose of the Venue Clause. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 , 806–08 (1995). Historical sources indicate that the central purpose of the Venue Clause’s requirement that trials be held in “the state where the said crimes shall have been committed” was to prevent criminal suspects from being tried in arbitrary locations, far away from witnesses. See Joseph Story, Commentaries on the Constitution § 1775 (1833). This was an important issue for the Framers. The Declaration of Independence had criticized the Crown “[f]or transporting us beyond Seas to be tried for pretended offences.” The Declaration of Independence para. 21 (U.S. 1776). In Federalist No. 84, Alexander Hamilton argued that the Constitution contained “various provisions in favor of particular privileges and rights,” including the Venue 3 The first human flight occurred on November 21, 1783, in Paris, France, in a hot air balloon made of paper and silk. History of Ballooning, National Balloon Museum, https://www.nationalballoonmu seum.com/about/history-of-ballooning/ (last visited Sept. 23, 2020). The balloon reached an altitude of 500 feet and traveled 5.5 miles before landing 25 minutes later. Id. The first manned flight in America occurred on January 9, 1793. Id. A balloon carrying one man ascended from a prison yard in Philadelphia, Pennsylvania, reaching an altitude of 5,800 feet. Id. President Washington observed the launch of the balloon, which later landed in Gloucester County, New Jersey. Id.  UNITED STATES V. LOZOYA 23 Clause’s general rule that a trial be held in the state where the crime was committed. The Federalist No. 84 (Alexander Hamilton). As the Supreme Court subsequently explained, the Framers drafted the Venue Clause with an awareness “of the unfairness and hardship to which trial in an environment alien to the accused exposes him.” United States v. Johnson, 323 U.S. 273 , 275 (1944). Given the inadequacy of our usual interpretive tools, we should interpret the Venue Clause in a manner consistent with its evident purpose. A ruling that crimes that are committed entirely in navigable airspace (and that have no effect on the ground below) are “not committed within any State” is consistent with that purpose, because it allows Congress to identify a reasonable place to hold trials for such crimes. See Story, Commentaries, § 1775. Otherwise, prosecutors would be required to establish where a criminal act occurred in airspace over a state, and defendants would have to be tried in flyover states. Accordingly, under the Venue Clause, a crime is “not committed within any State” when the criminal conduct occurs in navigable airspace. 4 4 The conclusion that a crime is not committed within any state if it is committed in navigable airspace requires us to overrule United States v. Barnard, which held that “navigable airspace above [a] district is a part of the district.” 490 F.2d 907 , 911 (9th Cir. 1973). Under federal law, if a crime is committed in a judicial district, it is also committed in a state. See 28 U.S.C. §§ 81 –131 (defining judicial districts as comprising all or part of a state, with few exceptions). If the navigable airspace above a district is part of that district and part of a state, then the trial of an offense in such airspace must take place within that district and state. See U.S. Const. art. III, § 2, cl. 3; U.S. Const., amend VI. The majority attempts to distinguish Barnard on the ground that it “did not purport to interpret Article III or the Sixth Amendment.” Maj. at 8 n.3. This is irrelevant, however, because we are bound by the constitutional significance of Barnard’s ruling whether or not Barnard referenced the 24 UNITED STATES V. LOZOYA The majority agrees that in-flight crimes are “not committed within any State” within the meaning of the Venue Clause and are not committed within a “district” for purposes of the Sixth Amendment. According to the majority, neither the relevant text of either provision nor the Framers’ understanding of them supports Lozoya’s view that “a state or district includes the airspace above it for constitutional venue purposes.” Maj. at 7. The majority thus concludes that, when crimes are “committed on planes in flight, the Constitution does not limit venue to the district directly below the airspace where the crime was committed.” Id. at 8. Accordingly, the majority explains, “venue ‘shall be at such Place or Places as the Congress may by Law have directed.’” Id. (quoting U.S. Const. art. III, § 2, cl. 3). III Because Lozoya’s offense was “not committed within any State,” the trial “shall be at such Place or Places as the Congress may by law have directed.” U.S. Const. art. III, § 2, cl. 3. Congress provided this direction in 18 U.S.C. § 3238 , 5 which mirrors and implements the exception in the Venue Clause or Sixth Amendment. If Barnard remains good law, then we must deem the assault here to have “occurred entirely within the jurisdiction of a particular district” and a particular state, and Lozoya must be tried in that district and state. See United States v. Lozoya, 920 F.3d 1231 , 1241 (9th Cir. 2019) (emphasis added), reh’g en banc granted, 944 F.3d 1229 (9th Cir. 2019). 5 As currently drafted, 18 U.S.C. § 3238 provides: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such  UNITED STATES V. LOZOYA 25 Venue Clause. The majority’s argument to the contrary is based almost entirely on legislative history, which it uses to rewrite the text of § 3238. But as explained below, the language of § 3238 refutes the majority’s claims, and the majority’s selective quotations from committee reports do nothing to alter that. See United States v. Mendoza, 244 F.3d 1037 , 1042 (9th Cir. 2001) (“If the text of the statute is clear, this court looks no further in determining the statute’s meaning.”). Indeed, the text and statutory history of both § 3238 and § 3237 strongly confirm that the majority relies upon the wrong venue provision in upholding the conviction here. A Section 3238 is the direct descendant of the statute enacted by the First Congress to implement the Venue Clause. In the Crimes Act of 1790, Congress provided: [T]he trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought. Ch. 9, § 8, 1 Stat. 112 , 114 (1790). As the Supreme Court explained over a century ago, Congress enacted this venue provision in the Crimes Act to offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. 26 UNITED STATES V. LOZOYA implement the Venue Clause’s exception for crimes “not committed within any State.” United States v. Dawson, 56 U.S. 467 , 487–88 (1853). The First Congress used the phrase “crimes committed . . . in any place out of the jurisdiction of any particular state” to refer to crimes “not committed within any State.” Id. at 488 . This makes clear that the “place” referred to in the Crimes Act is a place outside of any state’s territory, which is where the state would normally have jurisdiction to adjudicate offenses. In 1873, Congress passed An Act to Revise and Consolidate the Statutes of the United States, 18 Stat. 138 , which moved and renumbered the Crimes Act’s venue provision and made minor revisions to its language as follows: The trial of all offenses committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought. 6 Congress revised the phrase “or in any place out of the jurisdiction of any particular state” to “or elsewhere, out of the jurisdiction of any particular State or district.” 1 Stat. 112 , 114; 18 Stat. 138 (emphasis added). The context makes clear, however, that the word “elsewhere” continues to refer to a “place” that is not within a state. See Cook v. United States, 138 U.S. 157 , 181–82 (1891) (continuing to interpret this provision as directing venue for “offenses not committed within any state” under the Venue Clause). Congress made limited stylistic amendments to this provision again in 1911. 6 With the 1873 amendments, Congress renumbered the provision to Title XIII, Ch. 12, § 730 of the U.S. Code. 18 Stat. 138 .  UNITED STATES V. LOZOYA 27 36 Stat. 1100 . In 1948, Congress recodified the provision as 18 U.S.C. § 3238 and amended the statute to apply to offenses “begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district.” 62 Stat. 826 . Again, this language refers to places that are not within a state. In 1963, Congress amended § 3238 to clarify where venue would be proper when an offense involved two or more joint offenders, or when the offender or offenders were not arrested or brought into any district. 77 Stat. 48 . Congress retained the prior language of the statute, but added the following italicized language: The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia. 18 U.S.C. § 3238 (emphasis added). According to a contemporaneous legislative report, Congress amended the statute in response to two concerns expressed by the Attorney General. First, the previous version of § 3238 created a “most awkward situation in certain instances when two or more joint offenders [were] involved.” H.R. Rep. No. 28 UNITED STATES V. LOZOYA 86-199, at 2 (1959) (Judiciary Committee Report); see also S. Rep. No. 88-146 (1963), as reprinted in 1963 U.S.C.C.A.N. 660. For example, if two or more individuals jointly committed acts of treason abroad and were then found in different districts within the United States, the previous version of § 3238 would require them to be tried in different jurisdictions. H.R. Rep. No. 86-199, at 2. Second, the prior version of § 3238 lacked language that would allow the government to indict “an offender who commits an offense beyond the bounds of the United States and [who] remains beyond those bounds.” 7 Id. The amendment to § 3238 addressed both concerns. Id. at 1. 8 While the 1963 amendment gave the government more flexibility to try cases involving defendants who committed offenses against 7 When defendants committed crimes against the United States abroad, the statute of limitations for commencing criminal prosecution against such defendants continued running while they remained living abroad. See H.R. Rep. No. 86-199, at 3; see also Donnell v. United States, 229 F.2d 560 , 565 (5th Cir. 1956). The Attorney General wanted the authority to indict such defendants in the United States in order to toll the statute of limitations. 8 According to the House Judiciary Committee Report, the purpose of this amendment to § 3238 was to: (1) permit the indictment and trial of an offender or joint offenders who commit abroad offenses against the United States, in the district where any of the offenders is arrested or first brought; (2) to prevent the statute of limitations from tolling in cases where an offender or any of the joint offenders remain beyond the bounds of the United States by permitting the filing of information or indictment in the last known residence of any of the offenders. H.R. Rep. No. 86-199, at 1; see also S. Rep. No. 88-146, at 1, 1963 U.S.C.C.A.N. at 660.  UNITED STATES V. LOZOYA 29 the United States abroad, it did not change the original text of § 3238, which continued to apply to offenses committed “elsewhere out of the jurisdiction of any particular State,” just as it had since the Crimes Act. Given the text and history of § 3238, the majority’s claim that § 3238 applies only to offenses “committed entirely on the high seas or outside the United States” lacks merit. Maj. at 13 (quoting United States v. Pace, 314 F.3d 344 , 351 (9th Cir. 2002)). The majority’s interpretation has no support in the text of § 3238. Although Congress could have limited § 3238 to offenses committed “outside the United States,” it instead chose to reference offenses “committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district.” 18 U.S.C. § 3238 (emphasis added). 9 The majority is likewise mistaken in claiming that the reference in § 3238 to offenses that are committed “elsewhere out of the jurisdiction of any particular State” applies only to offenses that a state lacks the authority to prosecute. Maj. at 17. The text and statutory history of § 3238 show that its scope is coextensive with the Venue 9 The majority’s reliance on dicta in nonbinding cases provides no support for concluding otherwise. The unreasoned statement in Pace that “§ 3238 does not apply unless the offense was committed entirely on the high seas or outside the United States (unless, of course, the offense was ‘begun’ there)” is mere dicta given that the offense in Pace was “partially ‘committed’ in the District of Ohio.” 314 F.3d at 351 . The two other cases cited by the majority are likewise unreasoned and unpersuasive. See United States v. Miller, 808 F.3d 607 , 621 (2d Cir. 2015) (stating, without support, that § 3238 “focuses on offense conduct outside of the United States” (emphasis added)); United States v. Layton, 519 F. Supp. 942 , 943–44 (N.D. Cal. 1981) (stating without support or reasoning that “[t]he apparent purpose of [§ 3238], however, is simply to provide an arbitrary rule of venue for offenses committed outside of the United States” (emphasis added)). 30 UNITED STATES V. LOZOYA Clause exception, and applies to crimes committed outside the territory of a state. The majority contends that this construction of § 3238 is wrong. According to the majority, if § 3238 applies to in- flight offenses, then such offenses would be deemed to have been committed “elsewhere out of the jurisdiction of any particular State,” and that interpretation would divest states of their prosecutorial jurisdiction over in-flight crimes. Maj. at 15–16. The text of the statute refutes the majority’s reading. By using the word “elsewhere,” § 3238 focuses on whether the place where the offense was committed is “out of the jurisdiction of any particular State” and not (as the majority would have it) on whether the State has the authority to prosecute the offense. This means there is no daylight between § 3238 and the Venue Clause because both focus on whether the place in which the offense occurred is within a state. And because the majority agrees that the airspace at issue here is not a place within any State for purposes of the Venue Clause, see supra at Part II, it follows that the airspace is also not a place within the jurisdiction of any State for purposes of § 3238. Thus, nothing about § 3238 could be said to “divest states of their jurisdiction.” Maj. at 16–17. The question whether a state can prosecute a crime committed outside a state’s territory in navigable airspace is exactly the same under § 3237(a) or § 3238. 10 10 The majority merely assumes that a state has jurisdiction to prosecute crimes committed at cruising altitude in navigable airspace, and supports its assumption only with the legislative history of the 1961 amendments to the Federal Aviation Act. Maj. at 15–16 & n.12. The views of legislators regarding a state’s jurisdiction provide no guidance for our analysis of such a legal question, and of course the legislative history of a “completely separate statute[] passed well after” the statute  UNITED STATES V. LOZOYA 31 Nor does legislative history support the majority’s interpretation. The majority relies on legislative history explaining the 1963 amendment to § 3238, Maj. at 14–17, which added language covering offenders committing criminal acts abroad. This amendment did not affect the language in § 3238 relevant here, which directs that offenses committed “elsewhere out of the jurisdiction of any particular State or district” must be tried in the district in which the offender is arrested or first brought. Therefore, the 1963 legislative history sheds no light on whether the relevant language in § 3238 is limited to offenses committed abroad. In short, § 3238 implements the Venue Clause: it provides where a crime shall be tried if it is “not committed within any State.” Because an assault in navigable airspace is “not committed within any State,” the trial must be held where § 3238 directs, namely, “in the district” where the offender is “arrested or . . . first brought,” or if there is no such district, in the district where the offender resides. 18 U.S.C. § 3238 . This is consistent with the purposes behind the Venue Clause because the trial of an offender who committed an assault on an airplane will generally be held where the offender is arrested, typically in the district where the plane lands. 11 Such a venue is not arbitrary, because the defendant, the witnesses, and the victims are more likely to be found in that district than any other. being construed, has little persuasive power even to those who rely on legislative history. Doe v. Chao, 540 U.S. 614 , 626 (2004). 11 This is consistent with the “near-universal practice of landing district prosecution.” Maj. at 11. 32 UNITED STATES V. LOZOYA Because Lozoya committed an assault in navigable airspace, § 3238 applies, and she is subject to trial in the Central District of California. 12 B To recap, the majority agrees that a crime committed on a plane in flight is “not committed within any State” for purposes of the Venue Clause. Maj. at 8. And as the Venue Clause’s exception provides, if a crime is not committed within a state, it may be tried wherever Congress directs. 13 But instead of relying on § 3238, which expressly directs where an offense committed outside of a state must be tried, the majority relies on the second sentence in § 3237(a), which addresses a different issue: ensuring that continuing offenses can be tried “in any district from, through, or into which . . . commerce . . . moves.” 14 12 The record indicates that Lozoya’s residence was in Riverside, California. Therefore, even if Lozoya was not arrested when she was summoned to appear before the magistrate judge, venue was proper in the district of her last known residence, the Central District of California. See 18 U.S.C. § 3238 . 13 For instance, the majority points to 48 U.S.C. § 644a, which provides that all offenses committed on certain Pacific islands “shall be deemed to have been consummated or committed on the high seas on board a merchant vessel or other vessel belonging to the United States.” Maj. at 11 n.6. Because these islands are not “within any State,” Congress may direct where crimes on such islands may be tried. 14 18 U.S.C. § 3237 (a) provides, in full: Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired  UNITED STATES V. LOZOYA 33 The text and statutory history make clear that § 3237(a) does not implement the Venue Clause, but rather provides for the trial of offenses committed in more than one state or district. The second sentence in § 3237(a) was enacted in response to the Supreme Court’s decision in United States v. Johnson, 323 U.S. at 273–74. 15 Johnson construed a criminal statute making it unlawful to “use the mails or any instrumentality of interstate commerce” to send or receive certain dentures across state lines. 323 U.S. at 273–74. Given a defendant’s constitutional right to be tried in the state and district where the crime was committed, U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI, the Supreme Court construed the denture statute narrowly as permitting trial only in the state and district where the sender put the dentures in the mail or into which the importer brought the of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves. 15 Prior to Johnson, the statute which is now § 3237(a) read: When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein. 36 Stat. 1100 (1911). 34 UNITED STATES V. LOZOYA dentures. Id. at 277–78. The Court indicated, however, that it would have reached a different result had Congress used “the doctrine of a continuing offense” and expressly provided that the crime extended over the whole area through which the dentures were transported. Id. at 275 . Congress could, if it chose, enact “specific venue provisions giving jurisdiction to prosecute in any criminal court of the United States through which a process of wrongdoing moves.” Id. at 276 . Rather than add a specific venue provision to the denture statute itself, as Johnson had suggested, Congress responded to Johnson by adding the second sentence of what is now § 3237(a), which expressly referred to a “continuing offense” and provided that such a continuing offense in the use of the mails or interstate commerce could be prosecuted “in any district from, through, or into which such commerce or mail matter moves.” This amendment to § 3237(a) thus directly implemented Johnson’s guidance that Congress could use “the doctrine of a continuing offense” in order to “provide that the locality of a crime shall extend over the whole area through which force propelled by an offender operates,” and therefore “an illegal use of the mails or of other instruments of commerce may subject the user to prosecution in the district where he sent the goods, or in the district of their arrival, or in any intervening district.” Id. at 275. The second paragraph of § 3237(a) is not surplusage, as the majority wrongly suggests. See Maj. at 10–11. Rather, the second paragraph defines a particular category of offenses that constitute continuing offenses and thereby fall within the more generally framed rule set forth in the first paragraph. Given the overlap between these two paragraphs, and the fact that the first paragraph of § 3237(a) standing  UNITED STATES V. LOZOYA 35 alone was insufficient to forestall the outcome in Johnson, the majority’s suggestion that the two paragraphs must be read as applying to two different categories of offenses is clearly wrong. Id. It is not uncommon to have a situation “in which a general authorization and a more limited, specific authorization exist side-by-side.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 , 645 (2012). In that situation, there is no violation of the canon against superfluity, because the canon that “the specific governs the general” governs the analysis. Id. (citation omitted). Rather than being superfluous, the specific authorization (rather than the more general one) controls in the cases where it applies. Id. Further, the majority’s notion that, in order to avoid surplusage, the second paragraph of § 3237(a) must be read in a way that raises grave constitutional concerns ignores the equally, if not more important, constitutional- avoidance canon. See infra at Part III.B. Even if there were redundancy in the proper reading of § 3237(a) set forth above, that reading is natural and preferable compared to the majority’s oxymoronic and constitutionally problematic notion of a non-continuing continuing offense. The doctrine of “continuing offenses” discussed in Johnson is not related to the Venue Clause’s exception for offenses “not committed within any State,” which is addressed in § 3238. Rather, the doctrine is a specific application of the constitutional requirements that crimes be tried in the state and district where they were committed. As interpreted by the Supreme Court, a “continuing offense” is an offense that “consists of distinct parts” that occur in “different localities,” and “the whole may be tried where any part can be proved to have been done.” United States v. Rodriguez-Moreno, 526 U.S. 275 , 281 (1999) (quoting United States v. Lombardo, 241 U.S. 73 , 77 (1916)). In other words, a “continuing offense” is one which was committed 36 UNITED STATES V. LOZOYA in more than one state, and so can be tried in more than one state. For instance, crimes that persist during the course of transportation between states, such as interstate drug smuggling or kidnaping, are continuing offenses, which can be tried wherever the transportation occurred. See Rodriguez-Moreno, 526 U.S. at 279–81 (holding that kidnaping is a continuing offense because the “conduct constituting the offense” continues throughout the journey and “does not end until the victim is free”). Congress cannot avoid the strictures of the Sixth Amendment and Venue Clause merely by labeling a point- in-time offense as a “continuing offense.” “Crimes consisting of a single noncontinuing act are ‘committed’ in the district where the act is performed.” Pace, 314 F.3d at 350 (quoting United States v. Corona, 34 F.3d 876 , 879 (9th Cir. 1994)). Any Congressional enactment that purported to allow the trial of such a point-in-time offense outside the state and district where it occurred, whether or not the offense was labeled “continuing,” would be constitutionally impermissible. Therefore, the term “continuing offense” in § 3237(a) must be interpreted as referring to the sort of crime that “extend over the whole area through which force propelled by an offender operates,” Johnson, 323 U.S. at 275 , where the “process of wrongdoing” is “a continuing phenomenon,” id. at 276–77. Contrary to the Supreme Court’s definition of the continuing offense doctrine, the majority has interpreted the phrase “continuing offense” in § 3237 to include any offense (including point-in-time offenses) involving transportation in interstate or foreign commerce. See Maj. at 10 (rejecting the argument that the “definition that Congress adopted” requires that the offense be continuing or persisting in any way). Therefore, under the majority’s interpretation, any  UNITED STATES V. LOZOYA 37 offense (including a discrete slap) that “take[s] place on a form of interstate transportation” meets the criteria in the second sentence of § 3237(a): it is a continuing offense “involving” transportation in interstate commerce under § 3237(a), at least when the offense is one “whose very definition requires interstate transportation.” Maj. at 10. Indeed, the majority acknowledges that no part of the offense at issue here occurred in the Central District of California. Maj. at 6 n.1 (“It is undisputed that the assault happened before the plane entered airspace above the Central District . . . .”). The majority’s interpretation is wrong on its face and raises potential constitutional problems. By its terms, § 3237(a) is not limited to offenses that fall within the Venue Clause’s exception for crimes not committed within any state. As a result, as interpreted by the majority, § 3237 will apply in a range of circumstances that raise significant constitutional concerns. A simple hypothetical shows why. Consider a rogue baggage handler standing on the tarmac at Los Angeles International Airport. As an airplane takes flight on its way to New York’s John F. Kennedy International Airport, the baggage handler aims the beam of a laser pointer at the aircraft in violation of 18 U.S.C. § 39A(a), which punishes “[w]hoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States.” Under the Venue Clause, the baggage handler’s offense was committed in California, and because the Venue Clause’s exception for offenses “not committed within any state” is inapplicable, it must be tried in California. And Congress cannot circumvent the Venue Clause by relabeling the baggage handler’s noncontinuing action as a “continuing offense.” See Rodriguez-Moreno, 526 U.S. at 279 ; United States v. Cabrales, 524 U.S. 1 , 6–7 (1998). Indeed, the majority agrees that the Constitution 38 UNITED STATES V. LOZOYA requires this hypothetical offense to be tried in California. Maj. at 8 n.4. But under the majority’s interpretation, § 3237(a) applies to the baggage handler’s crime. Like the slap in this case, the baggage handler’s laser pointing “‘involved’ transportation in interstate commerce under [the majority’s] reading of the word ‘involve.’” See Maj. at 10. Accordingly, it is a “continuing offense,” per the majority’s interpretation of § 3237(a). And, likewise, § 39A(a)’s “very definition requires interstate transportation.” Maj. at 10. Therefore, under the majority’s reading of § 3237(a), the baggage handler has committed a “continuing offense,” and he may be tried in any district “from, through, or into which such commerce . . . moves.” 18 U.S.C. § 3237 (a). This includes (depending upon the airplane’s exact route) the District of New Mexico, the District of Kansas, the Central District of Illinois, and the Eastern District of New York. The majority agrees that such a result is inconsistent with the Venue Clause because “[t]he provision for offenses ‘not committed within any state’ is inapplicable,” but does not reconcile this conclusion with its interpretation of § 3237(a). Maj. at 8 n.4. 16 Because many discrete offenses “relate to or affect” interstate transportation, the majority’s mistaken interpretation of § 3237(a) has a widespread effect. Maj. at 10. Even if the majority interprets § 3237(a) as applying only to statutory offenses that reference interstate 16 The majority says it is “puzzled” by this hypothetical, because it is clear that the Venue Clause requires the baggage handler to be tried in California. Maj. at 8 n.4. Given that § 3237(a), as interpreted by the majority, applies to the baggage handler’s offense, this amounts to an implicit acknowledgment that under the majority’s reading, § 3237(a) would be unconstitutional in many applications.  UNITED STATES V. LOZOYA 39 transportation or an instrumentality of interstate transportation, Maj. at 10, Congress has created numerous point-in-time offenses that include such a reference, see, e.g., 18 U.S.C. § 1992 (criminalizing various discrete acts against and/or involving railroad equipment and mass transportation systems); 18 U.S.C. § 33 (a) (criminalizing destruction of motor vehicles or motor vehicle facilities “used, operated, or employed in interstate or foreign commerce”). Although these offenses would generally be committed within a particular state, under the majority’s interpretation of § 3237(a), defendants may be tried wherever the relevant instrumentality of commerce has moved. But more important, if § 3237(a) governs crimes that “relate to or affect” transportation in interstate commerce, Maj. at 10, and is not limited to offenses that are “continuing” because the “process of wrongdoing” continues during interstate transportation, Johnson, 323 U.S. at 276 , then the language of the statute provides no basis to limit § 3237(a) to offenses “whose very definition requires interstate transportation.” See Maj. 10. And absent such a limiting principle, “any offense involves transportation in interstate commerce so long as the interstate transportation is among the circumstances related to the commission of the offense.” United States v. Morgan, 393 F.3d 192 , 200 (D.C. Cir. 2004); see also United States v. Cope, 676 F.3d 1219 , 1225 (10th Cir. 2012) (“[T]he government need only show that the crime took place on a form of transportation in interstate commerce.” (quoting United States v. Breitweiser, 357 F.3d 1249 , 1253 (11th Cir. 2004))). Given that it is “rare that a crime does not involve circumstances in which a person or instrumentality related to the crime has not passed through interstate commerce,” Morgan, 393 F.3d at 200 , the 40 UNITED STATES V. LOZOYA majority’s reading of § 3237(a) will swallow the Venue Clause. Even when an offense is not committed within any state, like Lozoya’s offense in navigable airspace, the majority acknowledges that its interpretation of § 3237(a) leads to absurd results that are inconsistent with the purposes of the Venue Clause. See Maj. at 12 n.8 (“We acknowledge that § 3237(a) theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts.”). Under the majority’s interpretation, for example, Lozoya could be tried in any district over which the airplane flew while traveling from Minneapolis to Los Angeles. She could have faced trial in a state where she, her accuser, and witnesses never set foot. We should not lightly assume that Congress enacted a venue rule so contrary to the Framers’ intent. Johnson, 323 U.S. at 276 ; Story, Commentaries, § 1775. In short, the majority’s reading of § 3237(a) as providing the venue for point-in-time offenses that could occur in a single state is not plausible. It conflicts with the most natural reading of § 3237(a), which is that it provides the venue for a trial of “continuing offenses,” meaning offenses that occurred in multiple states. When “choosing between competing plausible interpretations of a statutory text,” we must employ the “reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371 , 381 (2005). Interpreting § 3237(a) in a strained manner that renders it unconstitutional in many instances and contrary to the Venue Clause’s purposes in others violates this principle. Nor can we overlook these constitutional problems simply because applying § 3237(a) in the case before us does not violate the Venue Clause. The Supreme Court forbids us from  UNITED STATES V. LOZOYA 41 interpreting a statute one way in this case and another way when the constitutional problems we have invited show up at our doorstep. Doing so “would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.” Id. at 382. IV It is a mystery why the majority relies on a venue statute that obviously does not apply to discrete criminal offenses in navigable airspace, instead of a statute that has provided venue for offenses “not committed within any State” since the beginning of our nation. Section 3238’s text and history indicate that it governs those offenses, and applying § 3238 is more consistent with Article III’s purposes than applying § 3237(a). Because the majority’s interpretation of § 3237(a) creates serious constitutional problems that could easily be avoided, we should adopt the construction “more consonant with the considerations of historic experience and policy which underlie those safeguards in the Constitution regarding the trial of crimes.” Johnson, 323 U.S. at 276 . Therefore, I dissent.

2020-01-17 22:02:06.808133+00

Littleton

*121OPINION. Littleton: The issue in this case arises as the result of events which occurred substantially as follows: The Golden Cycle Co. and the Fuel Company were in existence prior to 1917 and between 1909 and 1916 the former company acquired almost all the capital stock and bonds of the latter. On January 15, 1917, as the result of the Fuel Company being in default on the payment of interest on its bonds and for the purpose of securing a reorganization of that company, the Golden Cycle Co. foreclosed on the bonds of the Fuel Company and purchased the assets of the Fuel Company for $124,-000, an amount less than the face value of the bonds and also much less than the agreed value of the assets on that date. On or about the same day the Consolidated Fuel Co. was organized with a capital stock of $100,000, all of which was issued to the Golden Cycle Co. in consideration for the transfer to it of all the assets acquired by the Golden Cycle Co. from the Fuel Company and certain other assets theretofore owned by the Golden Cycle Co. The value of the foregoing assets on the date of transfer was $1,344,355.28. The Commissioner determined that a profit of $736,438.08 resulted on account of the transfer of assets for stock and an income tax was computed and assessed thereon for 1917, but since the corporations were considered by the Commissioner to be affiliated for excess-profits-tax purposes, the profit was eliminated from income in determining the excess-profits tax of the affiliated group. The controversy before us arises in determining the consolidated invested capital in 1918 and 1919, where the Golden Cycle Co. and *122the Consolidated Fuel Co. are members of an affiliated group, and the question is as to the effect of the aforementioned transaction of January 15, 1917, on invested capital. In contending that the entire value of $1,344,355.28 must be recognized for invested capital purposes, the petitioner says that the corporations who were parties to the transaction were not affiliated when such transaction occurred, and therefore we must look on the transaction as one occurring between nonaffiliated corporations. An examination of the record, however, shows that the deficiency letter which forms the basis of this proceeding included 1917,1918, and 1919, and that in such letter the Commissioner, in determining a deficiency for 1917, held that the Fuel Company was a member of the affiliated group to January 15, 1917, and that the Consolidated Fuel Co. was likewise a member from the date of its organization. The petitioner elected to file a petition only with respect to 1918 and 1919 and, therefore, 1917 is before us only in so far as it may be necessary for a determination of the deficiencies for 1918 and 1919. In such consideration the determination made by the Commissioner for 1917 and accepted by the petitioner without appeal must be accepted by us, as at least prima facie correct. The evidence before us on which the petitioner relies to show that the Golden Cycle Co. and the Consolidated Fuel Co. were not affiliated is the stipulation to the effect that the latter company was engaged “ solely in the mining and sale of coal ” and that as to the former company “ its principal business other than holding all of the capital stock of its subsidiaries consisted in gold ore reduction.” It is true, as petitioner points out, that under the 1917 Act two corporations are not to be affiliated merely because one corporation owns or controls substantially all of the stock of the other corporation, but there is a further condition to the same section as follows (sec. 1331, Revenue Act of 1921) : * * * Provided, That such corporations or partnerships were engaged in the same or a closely related business, or one corporation or partnership bought from or sold to another corporation or partnership products or services at prices above or below the current market, thus effecting an artificial distribution of profits, or one corporation or partnership in any way so arranged its financial relationships with another corporation or partnership as to assign to it a disproportionate share of net income or invested capital. * * * If, therefore, we were to accept the aforementioned descriptions of the business done by each corporation as sufficient to show that they were not engaged in the same or a closely related business,” we should still be without evidence as to the second part of the provision quoted above. In fact, the one bit of evidence we have as to their corporate relationship is a contract under which the Consolidated Fuel Co. would furnish to the Golden Cycle Co. all lignite coal required in the latter’s reduction operations. The evidence ,is in.suffi*123cient to show whether this was an arm’s-length transaction. In view of the foregoing consideration, we shall proceed on the basis of a transaction which occurred in 1917 (but prior to March 3, 1917) between two corporations which were affiliated for such year. Had the Golden Cycle Co. retained the assets in question and carried on its business activities without the formation of the Consolidated Fuel Co., certainly there would have been no basis for the increase now sought, and our question is whether the situation is changed by the formation of the latter corporation and the paying in to it of these assets by the former for its entire issue of capital stock, thereby creating an affiliated status for the two corporations. We think not. By the act in question, the group merely acquired a part of .its own capital stock and did not thereby create an additional investment in the group — the statutory investment or paying in for invested capital purposes was not affected by the transaction. H. S. Crocker Co., 5 B. T. A. 537; American Bond & Mortgage Co., 15 B. T. A. 264; Riggs National Bank, 17 B. T. A. 615; also, cf. Farmers Deposit National Bank et al., 5 B. T. A. 520; United Drug Co. v. Nichols, 21 Fed. (2d) 160; W. S. Bogle & Co. v. Commissioner, 26 Fed. (2d) 771; and Utica Knitting Co. v. United States, 68 Ct. Cls. 77, decided May 6, 1929. Reviewed by the Board. Judgment will 5e entered under Rule 50.

2020-01-17 22:02:06.856505+00

Marquette

*1190OPINION. Marquette : In his return for the year 1923 the petitioner claimed and deducted as a loss sustained in that year oh the sale of 4,000 shares of the preferred stock and 5,000 shares of the common stock of the T. A. Snider Preserve Co. the amount of $245,518.12. He now claims that the loss amounted to $828,890.18. The respondent denies that the petitioner sustained any loss on the sale in 1923 for the reasons (1) that the assets conveyed by the petitioner to the T. A. Snider Preserve Co. in 1920 did not at that time have the fair market value claimed by the petitioner, and (2) that the transaction in 1920 was not one giving rise to gain or loss; that the cost to the petitioner of the stock of the corporation was the cost to him of the assets he conveyed to the corporation, and that such cost is the basis for computing gain or loss on the subsequent sale of the stock. *1191We are of the opinion that the transaction in 1920 was one that should be recognized as giving rise to gain or loss, and that the fact that the petitioner did not report any gain therefrom in his return for 1920 does not preclude him from claiming a loss on the sale of the stock in 1923. We have heretofore held in numerous cases that where under the Revenue Act of 1918 assets were conveyed to a corporation in exchange for all of the capital stock of the corporation, the fair market value of the stock was equal to the fair market value of the assets at the date of conveyance; that gain or loss from the transaction should be measured by the difference between that fair market value and the cost or March 1, 1913, value of the assets, and that the fair market value of the assets is also the cost to the transferor of the stock received in exchange. William Ziegler, Jr., 1 B. T. A. 186; Wallis Tractor Co., 3 B. T. A. 981; Napoleon B. Burge, 4 B. T. A. 732; William Reibert, 7 B. T. A. 1198; George A. Bicker, 10 B. T. A. 11; C. A. O'Meara, 11 B. T. A. 101. We therefore hold that the cost to the petitioner of the shares of the capital stock of the T. A. Snider Preserve Co. received by him in 1920 was the fair market value of the assets he conveyed to the corporation, and that gain or loss from the subsequent sale of the stock should be computed on that basis. Section 202, Revenue Act of 1921. We are satisfied from the evidence herein that the tangible assets conveyed by the petitioner to the T. A. Snider Preserve Co. in 1920 had a fair market value of $2,840,631.10, and that the petitioner also conveyed to the corporation good will which had a fair market value of at least $350,000, making a total value for the assets of $3,190,631.10. The petitioner received for those assets $100,000 in cash and the A and B stock of the corporation. The cost to the petitioner of the A and B stock was, therefore, $3,090,631.10. In 1922 there was a reorganization of the T. A. Snider Preserve Co. in- which the petitioner surrendered his A and B stock and received in exchange cash, stocks and bonds, 4,000 shares of preferred stock at $100 per share and 8,333 shares of common stock. He donated 3,333 shares of common stock to employees of the corporation, and in 1923 he sold the remainder of his holdings for $492,500. We are of opinion that he sustained a loss on that sale computed as follows: Fair market value of assets conveyed by petitioner to the T. A. Snider Preserve Co. in 1920-$3,190, 631.10 Less cash received_ 100, 000. 00 Cost of A and B stock to the petitioner- 3,090, 631.10 In 1922 the petitioner received in exchange for A and B stock — cash_ $457, 026. 59 Stocks and bonds- 743, 042.42 - 1,200,069.01 Leaving balance of. 1,890, 562.09 *1192For which he received 4,000 shares of preferred stock at $100 per share_ $400, 000. 00 And 8,333 shares of common stock at $178.87 per share- 1, 490, 562. 09 1, 890, 562. 09 Deduct 3,333 shares common stock donated at $178.87 per share. $606,173. 71 Balance of cost_ 1, 284, 388. 38 Balance of stock sold in 1923 for_ 492, 500. 00 Loss- 791, S8S. 38 Judgment will be entered under Rule 50.

2020-12-03 17:02:19.051244+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313730

IN THE SUPREME COURT OF THE STATE OF DELAWARE JERVIS COX, § § Defendant Below, § No. 235, 2020 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1207018102 (S) § Plaintiff Below, § Appellee. § Submitted: November 6, 2020 Decided: December 2, 2020 ORDER On August 17, 2020, the Court issued a briefing schedule; the appellant’s opening brief was due October 1, 2020. On October 6, 2020, the Chief Deputy Clerk sent a brief delinquency letter to the appellant. On October 21, 2020, the Chief Deputy Clerk issued a notice, sent by certified mail, directing the appellant to show cause why his appeal should not be dismissed for his failure to file his opening brief. On October 26, 2020, the Court received the certified mail receipt indicating that the notice to show cause had been delivered. A timely response to the notice to show cause would have been due on or before November 5, 2020. The appellant has not responded to the notice to show cause, nor has he filed an opening brief. Dismissal of the appeal is therefore deemed to be unopposed.  NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rules 3(b)(2) and 29(b), that the appeal is DISMISSED. BY THE COURT: /s/ James T. Vaughn, Jr. Justice 2

2020-12-03 17:19:05.050497+00

http://www.courts.wa.gov/opinions/pdf/369510_unp.pdf

FILED DECEMBER 3, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 36951-0-III ) (consolidated with Respondent, ) No. 36952-8-III) ) v. ) ) UNPUBLISHED OPINION STEPHEN BENTON HARRIS JR., ) ) Appellant. ) LAWRENCE-BERREY, J. — RAP 2.4(b) allows appellate review of prior orders or rulings, even those that were immediately appealable, if they prejudicially affect the decision designated in the notice. One question before us is whether RAP 2.4(b) permits appellate review of a criminal judgment and sentence when the decision designated in the notice is an order revoking a drug offender sentencing alternative (DOSA) sentence. Supreme Court authority constrains us to review the judgment and sentence. Nevertheless, we generally affirm. FACTS Stephen Harris pleaded guilty to two counts of possession of a controlled substance and one count of resisting arrest. On August 1, 2018, the trial court entered its judgment and sentence. Specifically, the trial court imposed a DOSA sentence for the drug offenses, determined that Harris was indigent, and imposed a number of community No. 36951-0-III; No. 36952-8-III State v. Harris custody conditions and various fees and assessments together with interest. The judgment and sentence explicitly notified Harris he had 30 days to file a direct appeal and one year to file a collateral attack. Harris repeatedly violated the terms of his DOSA sentence. The State moved to revoke Harris’s DOSA sentence and have him serve his sentence in confinement. On June 17, 2019, the trial court heard argument and granted the State’s motion. On July 12, 2019, Harris appealed the DOSA revocation order. ANALYSIS On appeal, Harris raises issues about his August 1, 2018 sentence. He does not raise any issue about the June 17, 2019 DOSA revocation order. The State, citing RAP 5.2(a), urges us to dismiss the appeal of the sentence as untimely. Harris, citing RAP 2.4(b), argues his appeal of the sentence is timely. SCOPE OF REVIEW Generally, an appellate court will “review the decision or parts of the decision designated in the notice of appeal . . . and other decisions in the case provided in sections (b), (c), (d), and (e).” RAP 2.4(a). RAP 2.4(b) provides: The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review. 2 No. 36951-0-III; No. 36952-8-III State v. Harris This allows a defendant to avoid a “trap for the unwary . . . that a failure to appeal an appealable order could prevent its review upon appeal from a final judgment.” Adkins v. Alum. Co. of Am., 110 Wn.2d 128 , 134, 750 P.2d 1257 , 756 P.2d 142 (1988). In Adkins, the first trial resulted in a favorable verdict for the plaintiff, but the court granted a mistrial due to juror misconduct. The second trial resulted in a defense verdict, from which the plaintiff appealed. One of the issues on appeal was whether the appellate court should review the ruling granting the mistrial. The Adkins court concluded that the motion for mistrial was reviewable, reasoning: The requirements of RAP 2.4(b) are satisfied here. The second trial would not have occurred absent the trial court’s decision granting the motion for a mistrial; thus the decision prejudicially affected the final decision which was designated in the notice of appeal. Obviously the trial court’s action granting the mistrial occurred before the Court of Appeals accepted review. Id. at 134-35 . Our Supreme Court discussed RAP 2.4(b) in Franz v. Lance, 119 Wn.2d 780 , 781, 836 P.2d 832 (1992). There, the trial court orally ruled in favor of the plaintiffs on the trespass claim and stated it was inclined to award attorney fees.1 In October 1990, the 1 The Supreme Court’s opinion in Franz was per curiam and omitted most of the underlying facts. We obtain the facts for this paragraph from the subsequent unpublished case of Franz v. Lance, noted at 72 Wn. App. 1042 , 1994 WL 16180036 . 3 No. 36951-0-III; No. 36952-8-III State v. Harris trial court entered its findings and conclusions, together with its judgment quieting title and awarding damages. It reserved ruling on attorney fees for a later time. Two months later, the trial court issued a letter opinion awarding over $14,000 in attorney fees and costs. Supplemental findings and conclusions were entered in February 1991, and a supplemental judgment was entered in June 1991. The Court of Appeals dismissed the Lances’ January 2, 1991 appeal of the October 1990 judgment as untimely. The Lances sought and received discretionary review. The Supreme Court in Franz reversed and directed the Court of Appeals to review the October 1990 judgment. Citing the language of RAP 2.4(b), the Franz court held that the trial court’s judgment on the merits “prejudicially affected its subsequent award.” Franz, 119 Wn.2d at 782 . The court concluded: We hold the trial court’s October 29, 1990, judgment on the merits of the quiet title and trespass issues prejudicially affected its subsequent award of attorney fees and costs. That award was imposed against the Lances as a sanction under CR 11 and RCW 4.84.185 for filing a baseless answer to the Franzes’ complaint and for filing a frivolous counterclaim. The award therefore must stand or fall based on the findings and conclusions the trial court entered in support of the 1990 judgment. Under the reasoning in [prior cases], the Franzes’ timely notice of appeal from the award of sanctions should enable them to obtain review of the underlying judgment. Id. 4 No. 36951-0-III; No. 36952-8-III State v. Harris Here, the question is whether the first prong of RAP 2.4(b) is satisfied. In other words, does the October 2018 judgment and sentence prejudicially affect the June 2019 order revoking the DOSA sentence? In Adkins, the Supreme Court held that the order granting mistrial prejudicially affected the second trial, because the second trial “would not have occurred absent” the earlier decision. 110 Wn.2d at 134 . Applying this standard here, the judgment imposing the DOSA sentence prejudicially affected the order revoking the DOSA sentence. This is because the order revoking the DOSA sentence could not have occurred absent the DOSA sentence. In Franz, the Supreme Court held that the findings and conclusions in the original judgment prejudicially affected the sanctions award because the sanctions award “must stand or fall” based on the findings and conclusions the trial court entered in the original judgment. 119 Wn.2d at 782 . Applying this standard here, the judgment imposing the DOSA sentence did not prejudicially affect the order revoking the DOSA sentence. This is because the order revoking the DOSA sentence does not stand or fall on the sentence. Rather, it stands or falls on whether Harris complied with the conditions of his DOSA sentence. 5 No. 36951-0-III; No. 36952-8-III State v. Harris So which standard do we apply? In Right-Price Recreation, LLC v. Connells Prairie Community Council, 146 Wn.2d 370 , 46 P.3d 789 (2002), the court denied that the rule in Franz narrowed the rule in Adkins. Id. at 380. The court explained, the Franz “holding is a reiteration of the Adkins court’s recognition that the order appealed from would not have happened but for the first order.” Id. We are constrained to apply Adkins’s “but for” rule here and conclude that review of Harris’s sentence is appropriate.2 COMMUNITY CUSTODY CONDITIONS Harris contends the trial court erred by imposing the community custody condition prohibiting him from having contact with Department of Corrections (DOC) identified drug offenders. The State rightly points out that this issue is not preserved for appeal. However, because it is simpler to discuss why Harris’s contention is incorrect rather than why this was not a manifest error, we exercise our discretion in reviewing this issue. This court reviews challenges to community custody conditions for abuse of discretion and will reverse only when they are manifestly unreasonable. State v. Valencia, 169 Wn.2d 782 , 791-92, 239 P.3d 1059 (2010). A community custody 2 Harris’s RAP 2.4(b) scope of review argument was raised in reply to the State’s RAP 5.2(a) timeliness argument. The State did not have an opportunity to address RAP 2.4(b). Because we are affirming (except on an issue conceded by the State), we did not ask the State to provide additional briefing. The State is invited to address RAP 2.4(b) in a reconsideration motion if it believes we have erred on this issue. 6 No. 36951-0-III; No. 36952-8-III State v. Harris condition is vague if it does not give fair warning of the prohibited conduct to the defendant. State v. Bahl, 164 Wn.2d 739 , 752-53, 193 P.3d 678 (2008). “If ‘persons of ordinary intelligence can understand what the [condition] proscribes, notwithstanding some possible areas of disagreement, the [condition] is sufficiently definite.’” Id. at 754 (quoting City of Spokane v. Douglass, 115 Wn.2d 171 , 179, 795 P.2d 693 (1990)). A defendant’s right to association may be restricted if it is reasonably necessary to accomplish the essential needs of public order. State v. Riley, 121 Wn.2d 22 , 37-38, 846 P.2d 1365 (1993). This includes restricting a defendant from contact with known drug offenders in order to curb recurring use of illegal drugs. State v. Hearn, 131 Wn. App. 601 , 609, 128 P.3d 139 (2006). This court, in Hearn, already decided that prohibiting a defendant from contact with “known drug offenders” is a constitutional custody condition. Id. The inclusion of “DOC [identified] drug offenders” does not change this. Clerk’s Papers at 92. Those offenders who the DOC has identified as drug offenders is a list the offender is capable of obtaining, and a person of ordinary intelligence can understand this prohibition is from contact with anyone on this list. 7 No. 36951-0-III; No. 36952-8-III State v. Harris LEGAL FINANCIAL OBLIGATIONS (LFOs) Harris contends the trial court erred by imposing a fee for his urinalysis tests and for the supervision costs. He also contends the trial court erred by imposing interest on his LFOs. We agree in part. Supervision costs of community custody are discretionary and are subject to the same inquiry regarding a defendant’s ability to pay as other discretionary LFOs. State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wn.2d 1007 , 443 P.3d 800 (2019). Here, the trial court found that Harris was indigent and waived other discretionary LFOs. Consistent with this, it should have waived the costs of community custody supervision as well. However, the State contends these costs are moot because he is no longer being required to pay the costs and it is unclear that he paid the fees at any point in the past. We agree with the State. An issue is moot when a court is no longer able to grant effective relief. In re Cross, 99 Wn.2d 373 , 376-77, 662 P.2d 828 (1983). Harris argues if this court strikes the LFOs, he would be entitled to reimbursement for costs he already paid. This is not the case. Engrossed Second Substitute House Bill 1783, 65th Leg., Reg. Sess. (Wash. 2018), which became effective June 7, 2018, prohibits trial courts from imposing discretionary legal financial obligations on defendants who are 8 No. 36951-0-III; No. 36952-8-III State v. Harris indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); State v. Ramirez, 191 Wn.2d 732 , 738-39, 426 P.3d 714 (2018). However, this same bill included a provision stating that "[n]othing in this act requires the courts to refund or reimburse amounts previously paid towards legal financial obligations or interest on legal financial obligations." LA ws OF 2018, ch. 269, § 20. Because Harris is not entitled to reimbursement of any fees he may have paid, this court cannot grant effective relief and this issue is moot. Moving on to Harris' s second argument, LFOs other than restitution do not accrue interest. RCW 3.50.100(4)(b). Therefore, we agree that the court erred by imposing interest on the LFOs. Affirmed, but remanded to strike interest. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Lawrence-Berrey, J. WE CONCUR: ~ 1c0 Korsmo, A. C .J. (result only) 3 Fearin~t :Jr 9

2020-12-03 17:19:07.110591+00

http://www.courts.wa.gov/opinions/pdf/366995_unp.pdf

FILED DECEMBER 3, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 36699-5-III Respondent, ) (Consolidated with ) No. 36700-2-III) v. ) ) DAVID RAYMOND MULLINS, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, J. — David Mullins appeals from multiple convictions, but challenges only one of them in this action—his conviction for first degree escape. We reverse that conviction due to a defective charging document and remand to the trial court for further proceedings. FACTS Officer Michael Welch of the Colville Police Department arrested Mr. Mullins October 8, 2018, on the basis of two outstanding arrest warrants and probable cause to believe he had engaged in vehicle theft. One warrant was for a forgery conviction that still awaited sentencing. Welch transported Mullins to the Stevens County jail. Corrections Deputy Billy Reece took Mullins to Interview Room 1 in the booking area. Unable to book Mullins immediately because the deputies were feeding and providing No. 36699-5-III (consol. with 36700-2-III) State v. Mullins medication to the other inmates, Reece secured him in the interview room and gave him a meal before returning to the other prisoners. Shortly thereafter, Mullins was observed coming down a stairwell and was taken back to the interview room and once again secured therein. Once again, Mullins was able to open the door and leave.1 He again was apprehended in the building and discovered to be in possession of personal items belonging to one of the jailers.2 He was placed in a different room in the booking area and then transported to the hospital upon alleging a medical need to visit the facility. He was returned to the jail and ultimately booked in to the facility shortly after midnight. The prosecutor charged one count of first degree escape in the following manner: David Raymond Mullins in the County of Stevens, State of Washington, on or about October 8, 2018, then and there, while being detained pursuant to a conviction for Forgery, did escape from the [sic] custody. Clerk’s Papers (CP) at 72. The charge was ultimately tried to the bench. The court convicted Mr. Mullins of first degree escape, finding that he was not an inmate of the jail, but did escape the custody of corrections officers by leaving the secured room in which he had been confined. CP at 77. Mr. Mullins timely appealed to this court. A panel conducted video argument of the appeal. 1 The deputies discovered that Mullins had used the “spork” provided with the meal to open the door. 2 Portions of the incident were captured on a video that was played at trial. 2 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins ANALYSIS Mr. Mullins argues that both the evidence and the charging document were insufficient. He also argues that the offender score was inappropriately calculated. Having granted relief on that latter ground in a companion case, State v. Mullins, No. 36410-1-III (Wash. Ct. App. May 14, 2020) (unpublished), http://www.courts.wa.gov /opinions/pdf/364101_unp.pdf, and with resentencing required here, we need not further discuss the proof of prior conviction argument. We consider first the sufficiency of the evidence contention before turning to the sufficiency of the charging document. Sufficiency of the Evidence Mr. Mullins argues that because he never left the jail building, there was insufficient evidence that he escaped “custody” or that he escaped from a “detention facility.” We disagree. Since there was no allegation that he escaped a detention facility and that was not the theory of escape found by the trial judge, we need not discuss that particular theory except to the extent it overlaps with the charged theory of the case. Review of the sufficiency of the evidence from a bench trial is conducted under well settled standards. Evidence is sufficient to support a verdict if the trier-of-fact has a factual basis for finding each element of the offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 319, 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216 , 221-222, 616 P.2d 628 (1980). The evidence is viewed in the light most 3 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins favorable to the prosecution. Green, 94 Wn.2d at 221 . Appellate courts defer to the trier- of-fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60 , 71, 794 P.2d 850 (1990). In bench trials, “appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law.” State v. Homan, 181 Wn.2d 102 , 105-106, 330 P.3d 182 (2014). “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise.” Id. at 106. A person commits first degree escape if he “knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony.” RCW 9A.76.110(1). This statute was adopted by Laws of 2001, ch. 264, § 1. Prior to that amendment, the offense was committed when a person “detained pursuant to a conviction of a felony” “escapes from custody or a detention facility.” LAWS OF 1982, 1st Ex. Sess., ch. 47, § 23. By comparison, second degree escape involves escape from a detention facility without regard for the reason for incarceration. RCW 9A.76.120(1)(a). However, any escape from custody when held for a felony offense also constitutes second degree escape. RCW 9A.76.120(1)(b). Third degree escape is any other escape from custody. RCW 9A.76.130. Thus, while the location and reason for custody may matter for the inferior degrees of escape, it is not relevant for first degree escape. The reason for the 4 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins custody—a felony conviction—distinguishes first degree escape from the other degrees of the offense. The location and nature of the custody are not relevant. The term “custody” is defined as “restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew.” RCW 9A.76.010(2). In turn, “restraint” means an “‘act of restraining, hindering, checking, or holding back from some activity or expression,’” or a “means, force, or agency that restrains, checks free activity, or otherwise controls.” State v. Ammons, 136 Wn.2d 453 , 457, 963 P.2d 812 (1998) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1937 (1986)).3 Mr. Mullins argues that because he never left the building, he remained both in the detention facility and in custody because only his location within the building changed. Br. of Appellant at 11. As noted previously, he was not charged with escaping the facility, so the only question before this court is whether he escaped custody when he repeatedly removed himself from the locked conference room in which the corrections officers attempted to secure him prior to booking him in to the jail.4 We believe that to be the case. He was not in the location he was supposed to be in. 3 A “detention facility” is “any place used for the confinement of a person (a) arrested for, charged with or convicted of an offense, or . . . (d) otherwise confined pursuant to an order of a court . . . or (e) in any work release, furlough, or other such facility or program.” RCW 9A.76.010(3). 4 Presumably he was not charged under the “detention facility” prong of the statute because he had not been formally booked into the jail. Whether someone escapes a detention facility when they are captured within the jail building, is not a question before us due to the charging decision. 5 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins Informative are State v. Gomez, 152 Wn. App. 751 , 754, 217 P.3d 391 (2009). Ammons, and State v. Breshon, 115 Wn. App. 874 , 63 P.3d 871 (2003). Gomez involved a defendant who slipped out of handcuffs and left a booking room, and then the building. The evidence was sufficient to show escape from a detention facility. 152 Wn. App. at 752-753. Mr. Gomez defended on the basis that he merely had escaped custody (third degree escape) rather than a detention facility (second degree escape). Id. at 753. Satisfied with the proof that the room constituted a detention facility, this court affirmed, noting that Mr. Gomez should have remained in the room until the officer returned to him. Id. at 754. In Ammons, the defendants were convicted of first degree escape for failing to report to a work crew; they defended on the basis that they were not in “custody” while at work crew. 136 Wn.2d at 454-456 . The court disagreed and determined that the defendants were “in custody” both pursuant to a court order and by the assignment to the work crew. Id. at 460 . Breshon involved the question of whether defendants ordered to report to a drug treatment facility were “in custody” despite a failure to report to the facility. 115 Wn. App. at 876-877. Division Two of this court concluded that the defendants were “in custody” pursuant to the court order to report to the treatment facility. Id. at 878-879. Breshon discussed the Ammons holding: In any event, the majority did not require a detention separate from the restriction of freedom imposed by being in custody, even if that was custody from restraint arising from a court order. We, therefore, reject the 6 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins argument that Breshon and Simmons were not detained because they were not at least partially confined. Id.; accord State v. Kent, 62 Wn. App. 458 , 461, 814 P.2d 1195 (1991) (failure to return to jail from work release or hospital visit constituted escape due to not being where one was supposed to be). Also informative is State v. Bryant, 25 Wn. App. 635 , 608 P.2d 1261 (1980). There the defendant fled a courtroom, evading an officer; he was chased through the hallways and down the stairs before being “dogged” to the ground by the chief criminal deputy prosecutor. Id. at 636-637. This court concluded that Mr. Bryant had escaped custody once “he removed himself from the Deputy Sheriff’s physical restraint.” Id. at 638. Likewise, a prisoner who ran from a courtroom upon being ordered into custody was guilty of escape in the first degree because the order had placed him in custody. State v. Eichelberger, 144 Wn. App. 61 , 70-72, 180 P.3d 880 (2008). Similarly here, Mr. Mullins was not where he was supposed to be, and therefore was outside the “custody” of the corrections staff to whom the Colville police had entrusted him, once he slipped the restraint of the conference room in which he had been placed. He was restrained in the physical custody of the officers due to placement in the secured room, and escaped their custody when he freed himself from that location. Id. He no longer was “restrained” where he had been left. The evidence supported the bench verdict. 7 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins Adequacy of Charging Document Mr. Mullins also alleges that the charging document is defective because it omitted the knowledge element. The State responds that we should impute knowledge from the word “escape.” Mr. Mullins has the better argument. Again, well settled standards govern our review. “All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him.” State v. Kjorsvik, 117 Wn.2d 93 , 97, 812 P.2d 86 (1991). When challenged for the first time after a verdict has been returned, courts will liberally construe the document to see if the necessary facts can be found. If not, the charge will be dismissed without prejudice. Even if the charge is stated, a defendant who shows prejudice from “inartful” pleading also receives a dismissal of charges without prejudice. Id. at 105-106 . The initial question to be answered is whether “the necessary facts appear in any form, or by fair construction can they be found, in the charging document.” Id. at 105 . The liberal construction standard for belated challenges is designed to discourage “sandbagging” by withholding a challenge that could otherwise be timely remedied. Id. at 103 . As dutifully noted by the prosecutor, our case law previously has concluded that a charging document omitting the knowledge element of escape is constitutionally defective. State v. Brown, 169 Wn.2d 195 , 198, 234 P.3d 212 (2010). The State nonetheless argues 8 No. 36699-5-III (consol. with 36700-2-III) State v. Mullins that Brown did not consider its argument that the word “escape” necessarily conveys the concept of knowledge. We disagree that the argument requires a different result. First, this court must follow the decisions of the Washington Supreme Court. State v. Gore, 101 Wn.2d 481 , 486-487, 681 P.2d 227 (1984). If the State’s new argument is to be considered, that court must do the considering. Second, the fact that the legislature expressly added the knowledge element to the existing statute in 1982 strongly indicates that knowledge was not implicit in the concept of escape. Prior to that amendment, the statute had employed “escapes” as a verb. If “escapes” already meant “knowingly escapes,” there was no need for the 1982 amendment. Even if we were not required to follow Brown, the State’s argument is unconvincing in light of the statute’s history. Accordingly, we reverse the escape conviction without prejudice to the State refiling the charge. Reversed and remanded. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Korsmo, J. WE CONCUR: _________________________________ _________________________________ Fearing, J. Pennell, C.J. 9

2021-01-27 07:14:52.793214+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17886&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

Dismissed and Opinion Filed January 22, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01099-CV GWENDOLYN GABRIEL, Appellant V. MERRY OUTLAW, Appellee On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-17712 MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Molberg This appeal from the trial court’s October 26, 2020 orders granting appellee’s summary judgment motions was untimely filed. Asserting health issues and the need to file “ethical and criminal complaints” prevented her from filing the notice of appeal on time, appellant has filed a motion to extend time to file the notice of appeal. Appellee has responded with a motion to dismiss the appeal for want of jurisdiction. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542 , 55 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). Appellee notes that, under the applicable rule for perfecting appeal, the notice of appeal was due November 25, 2020 or, with an extension motion, December 10, 2020. See TEX. R. APP. P. 26.1 (notice of appeal due within thirty days after judgment signed unless certain post-judgment motions or request for findings of fact and conclusions of law are filed); 26.3 (providing that, upon motion, appellate court may extend time to file notice of appeal if notice is filed within fifteen days of deadline). Appellant, however, did not file the notice of appeal until December 18, 2020. A motion for extension of time is proper only when the notice of appeal is filed within the extension period. See id. 26.3. Because the notice of appeal here was filed outside the extension period, we deny appellant’s extension motion without regard to the merits, grant appellee’s motion to dismiss, and dismiss the appeal. See id. 42.3(a); Brashear, 302 S.W.3d at 545 . /Ken Molberg// KEN MOLBERG 201099f.p05 JUSTICE –2–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT GWENDOLYN GABRIEL, On Appeal from the 116th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-17-17712. No. 05-20-01099-CV V. Opinion delivered by Justice Molberg, Justices Goldstein and MERRY OUTLAW, Appellee Smith participating. In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER that appellee Merry Outlaw recover her costs, if any, of this appeal from appellant Gwendolyn Gabriel. Judgment entered this 22nd day of January, 2021. –3–

2020-12-03 18:00:14.240472+00

https://www2.ca3.uscourts.gov/opinarch/193476np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 19-3476 __________ TYRONE WAYNE ANDERSON, Appellant v. PERRY PHELPS, Department of Corrections Commissioner of Delaware; DAVID PIERCE; STEVEN WESLEY, Chief Bureau of Prisons in the State of Delaware; DELAWARE DEPARTMENT OF CORRECTIONS ____________________________________ On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-18-cv-02061) District Judge: Honorable Leonard P. Stark ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 20, 2020 Before: CHAGARES, PHIPPS, and COWEN, Circuit Judges (Opinion filed: December 3, 2020) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Tyrone Anderson, a Delaware state prisoner proceeding pro se, appeals from the District Court’s order dismissing his complaint as frivolous after screening it pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2). For the reasons discussed below, we will affirm. I. In December 2018, Anderson filed a civil rights complaint in the District Court, alleging that he was confined at the James T. Vaughn Correctional Center (“JTVCC”) during a prison uprising that resulted in the death of a correctional officer. On February 2, 2017, he was transferred to the Howard T. Young Correctional Institute (“HTYCI”). When Anderson arrived at HTYCI, he was placed in solitary confinement for 30 days and allegedly denied access to sufficient food, mental health care, and grievance processes. Anderson claimed that these actions by “unknown officers” violated his civil rights, as the officers intended to punish him because they believed that he had participated in the prison uprising at JTVCC. Anderson named as defendants the Delaware Department of Corrections (“DOC”), Commissioner Perry Phelps, HTYCI Warden Steven Wesley, and former JTVCC Warden David Pierce. The District Court screened the complaint and dismissed it as frivolous under 28 U.S.C. §§ 1915A, 1915(e)(2)(B). The District Court dismissed the complaint with prejudice, finding that amendment would be futile. This appeal ensued. II. We have jurisdiction under 28 U.S.C. § 1291 . We exercise plenary review over the District Court’s dismissal. See Dooley v. Wetzel, 957 F.3d 366 , 373–74 (3d Cir. 2020). “In assessing the Complaint, we are mindful of our obligation to liberally 2 construe a pro se litigant’s pleadings, particularly where the pro se litigant is imprisoned.” Id. at 374 (quotation marks and citation omitted). A claim is frivolous “where it depends on an ‘indisputably meritless legal theory.’” Id. (quotation marks and citation omitted). III. Anderson’s brief argues only that the District Court erred in dismissing his due process claims. Those arguments are meritless, as Anderson lacks a cognizable liberty interest in being confined in any particular institution, see Olim v. Wakinekona, 461 U.S. 238 , 251 (1983), in having access to grievance procedures, see Massey v. Helman, 259 F.3d 641 , 647 (7th Cir. 2001) (explaining that “a prison grievance procedure confers no liberty interest on a prisoner”), or in challenging his solitary confinement for 30 days, see Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549 , 561 (3d Cir. 2017) (explaining that, in Sandin v. Conner, 515 U.S. 472 , 486–87 (1995), the Supreme Court “found that thirty days in solitary confinement did not give rise to a protected interest”). Thus, the District Court properly concluded that Anderson’s due process claims are frivolous. And the District Court acted within its discretion when it determined that amendment of those claims would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103 , 108 (3d Cir. 2002). Anderson has waived any other issues, including any issues related to his Eighth Amendment claims, by failing to argue them in his brief. See Geness v. Cox, 902 F.3d 3 344, 355 (3d Cir. 2018) (“[I]t is well settled that a passing reference to an issue will not suffice to bring that issue before this court.” (internal quotation marks omitted)). 1 Accordingly, we will affirm the judgment of the District Court. 1 In any event, we note that the District Court properly concluded that the remaining claims against the DOC and the named defendants are frivolous. As the District Court explained, the DOC is a state agency that is immune from suit. See Karns v. Shanahan, 879 F.3d 504 , 513 (3d Cir. 2018). And Anderson failed to allege that any of the named defendants were personally involved in the alleged wrongdoing. See Rode v. Dellarciprete, 845 F.2d 1195 , 1207 (3d Cir. 1988). Anderson has waived any argument that the District Court abused its discretion when it determined that amendment of the remaining claims would be futile. 4

2013-10-30 07:31:12.667281+00

645 N.W.2d 747 (2002) In re RAMSEY COUNTY, o/b/o PIERCE COUNTY, WISCONSIN, Respondent, Gabrielle Joy Hruska, Respondent, v. Ryan M. Carey, Appellant. No. C7-01-2052. Court of Appeals of Minnesota. June 25, 2002. *748 Susan E. Gaertner, Ramsey County Attorney, Dawn R. Burlingame, Assistant County Attorney, St. Paul, MN, for respondent Ramsey County. Gabrielle Joy Hruska, Prescott, WI, pro se respondent. Daniel S. McGrath, Steingart, McGrath & Moore, LLC, Minneapolis, MN, for appellant. Considered and decided by RANDALL, Presiding Judge, STONEBURNER, Judge, and HUSPENI, Judge. OPINION HUSPENI, Judge.[*] On appeal from the denial of his motion to reduce his support obligation, appellant-father, who is totally disabled and lives with his parents, alleges (a) payments by his parents for his expenses should not be imputed to him as income; (b) his current net monthly income is below the poverty line, making child-care cost reimbursement presumptively unreasonable; and (c) equity requires that his support obligation be adjusted to be commensurate with his disability benefits. Because we agree that the magistrate erred in including as income to appellant the value of expenses met by his parents, and because without inclusion of that value in appellant's income, his child support obligation would be less than his minor child receives as derivative disability benefits, and because payment of child-care costs would be unreasonable, we reverse. FACTS In 1999, respondent Ramsey County, on behalf of respondent Gabrielle J. Hruska, *749 filed a paternity action against appellant Ryan M. Carey. After a hearing, the district court adjudicated Carey the father of respondent's child and, pursuant to the parties' agreement, entered an order establishing a $300 monthly child support obligation beginning January 1, 2000. Carey was subsequently adjudicated totally disabled by the Social Security Administration and began receiving disability benefits. At present his sole income is $633 per month in disability benefits. While Carey's application to be adjudicated as disabled was pending, his parents heeded advice of various mental health advocates and created a supplemental needs trust (the trust) for him. In August 2000, Carey moved to modify his child support obligation. Prior to the hearing, Carey indicated on the court's information request form that his expenses were being paid by the trust. Janet Carey, Carey's mother, who has power of attorney for Carey, represented that Carey's monthly expenses were at least $3,000. After a hearing, the magistrate, in an October 24, 2000 order, found that Carey had an imputed monthly income of $3,000 from the trust and $611 in disability benefits. Although the monthly guideline-determined support obligation for an income of $3,611 was $902.75, the magistrate did not modify the support obligation because no motion to increase support was pending. The magistrate granted Carey an adjustment, reducing his required payments by $107.50, to reflect the amount of dependent benefits paid to the minor child from social security. The district court affirmed the magistrate's order and Carey did not appeal. In April 2001, Carey again moved to modify his child support obligation. At the hearing on that motion, Janet Carey testified that Carey's monthly expenses had decreased significantly since October 2000, because Carey was no longer able to live independently and had moved into his parents' home. The record reflects that the only funds that have been deposited into the trust since January 1, 2001, are Carey's disability benefits. Janet Carey testified that Carey's expenses averaged $667 per month and that his disability payments were $633. She also testified that the monthly expenses for running her household, in which she, her husband, and Carey resided, were at least $2,700. The magistrate imputed $900 per month of in-kind income to Carey during 2001, which was one-third of the Carey household's monthly expenses. Subtracting out-of-pocket medical expenses of $411.79 from the imputed income and disability payments, the magistrate determined that Carey's average net monthly income was at least $1,121.21, that guideline support would be at least $280.30, and that Carey had failed to establish a substantial change in circumstances rendering the current support order unreasonable and unfair.[1] The magistrate also ordered that, effective May 1, 2001, Carey's obligation to provide support for the cost of medical and dental insurance be suspended in each month in which he verified that he received insurance from Minnesota Care or medical assistance. Further, the magistrate denied *750 Carey's request that his contribution toward child-care costs be modified. This appeal followed. ISSUES 1. Does the value of living expenses provided by parents to a totally disabled adult father constitute income that may be used in calculating the father's child support obligation? 2. Did the father show a substantial change in circumstances rendering the current child support obligation unreasonable and unfair and warranting a modification of his child support obligation? 3. Was the father's income below the federal poverty line and would such circumstance render the payment of child-care costs presumptively unreasonable? ANALYSIS The parties do not dispute that we are to review this child support magistrate's decision in the same manner as we would if a district court had made the decision. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000).[2] District courts have broad discretion when deciding whether to modify child support. Putz v. Putz, No. C7-01-257, 645 N.W.2d 343, 351, 2002 WL 1291822, at *4 (Minn. 2002). We will reverse an order regarding the modification of child support "only if the district court abused its broad discretion" and reached a "clearly erroneous conclusion that is against the logic and the facts on [the] record." Id. Carey argues that the magistrate clearly erred by determining that his income changes did not constitute a significant change in circumstances. He argues that (1) his parents' contribution to his living expenses should not be imputed to him as income for the calculation of his child support obligation; (2) he has shown a substantial change in circumstances because his expenses, and imputed income, have decreased dramatically; and (3) his income is below the federal poverty line and, therefore, making him pay child-care costs is presumptively unreasonable. We find Carey's arguments to be persuasive. I. In setting or modifying child support, the court shall take into consideration "all earnings, income, and resources of the parents * * *." Minn.Stat. § 518.551, subd. 5(c)(1) (Supp.2001). Income is defined as any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers' compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments. Minn.Stat. § 518.54, subd. 6 (2000). On this record, the payments made by Carey's parents for Carey's expenses are not made *751 to Carey. Therefore, those payments cannot be his "income" under the statutory definition of that term. Neither can we conclude that what is provided for Carey by his parents constitutes either his "earnings" or his "resources." There is no evidence in the record that Carey has, in any way, "earned" any sums from his parents. Similarly, because there is no indication that Carey has any control over, or input regarding, the use of any of the funds expended by his parents for his expenses, we cannot say that what his parents provide for him can be deemed his "resource." Thus, he has no income other than his $633 per month in social security disability benefits, he has no earnings, and he has no resources upon which a child support obligation may be imposed. In addition to the earnings, income, or resources listed in Minn.Stat. § 518.551, subd. 5(c), several statutory mechanisms exist to address any atypical ability a child support obligor may have to satisfy or help satisfy a support obligation. First, Minn. Stat. § 518.551, subd. 5(b)(1) (Supp.2001), provides that when determining child support obligations, the obligor's income includes "in-kind payments received by the obligor in the course of employment, self-employment, or operation of a business if the payments reduce the obligor's living expenses."[3] In Franzen v. Borders, however, we held that expenses paid for room and board that an obligor received while imprisoned did not constitute in-kind income under this section because the expenses were not incurred "in the course of employment." Franzen v. Borders, 521 N.W.2d 626, 630 (Minn.App.1994) (quoting Minn.Stat. § 518.551, subd. 5(b)(1) (Supp. 1993)). Similarly, the expenses met by Carey's parents here were clearly not expenses incurred "in the course of" Carey's employment and, therefore, this subdivision cannot be used to impute income to him. Second, courts are authorized to impute income to parents who are voluntarily unemployed or underemployed. Minn.Stat. § 518.551, subd. 5b(d) (2000). However, if a person is "mentally incapacitated, it shall be presumed that the parent is not voluntarily unemployed or underemployed." Minn.Stat. § 518.551, subd. 5b(e) (2000). Carey's adjudication as totally disabled statutorily requires the presumption that he is not voluntarily unemployed or underemployed pursuant to Minn.Stat. § 518.551, subd. 5b(d). Third, caselaw makes clear that [Minn.Stat. § ]518.551, subd. 5b(d) does not limit the power of the courts to consider whether an obligor's unemployment or underemployment is in bad faith toward his or her support obligation. Putz, 645 N.W.2d at 351, 2002 WL 1291822, at *7. Here, however, there is no allegation that Carey is unemployed or underemployed in bad faith. Respondents cite to Barnier v. Wells, 476 N.W.2d 795 (Minn.App.1991), in support of their argument that the value of the room, board, and expenses that Carey's parents provide for him should be included in his income as a "periodic payment." There is no merit in this argument. In Barnier, we held that gifts *752 "regularly received from a dependable source," may properly be included in the obligor's income for support purposes. Id. at 797. In Barnier, the obligor received monthly payments of $833 from his father, and payments of $5,000 from his grandmother each year on his birthday, Easter, and Christmas. Id. at 796. We held that the district court could take those regular, recurring monetary gifts received by the obligor into account when assessing his income for purposes of setting his child support obligation. Id. at 797. There is a significant distinction between the circumstances of Carey and those of the obligor in Barnier, who was fully employed and received significant cash gifts from his relatives. Importantly, what has been imputed to Carey as "income" are in-kind benefits provided to him by his parents. Unlike the situation in Barnier, the record before us in this case contains no reference to any payments, "periodic" or otherwise, being made to Carey himself by his parents. Moreover, as noted above, Carey has no control over the expenditure of funds on his behalf. Any "income" imputed to Carey by the magistrate has as its sole source the care and kindness of parents providing to an adult, disabled child those necessities that the child is unable to provide for himself. To label as "income" that which Carey's parents are providing to him is tantamount to placing upon those parents the obligation to support their grandchild. While Carey's parents may wish to be generous in their voluntary care and concern for their grandchild, they cannot be legally required to provide monetary support for the grandchild through the guise of imputing as "income" to Carey the value of the services and necessities provided to him by his parents. II. Because the magistrate erroneously imputed $900 per month income to Carey, a substantial change in circumstances is now presumed because his guideline-determined child support obligation is more than 20% and more than $50 less than his current obligation. See Minn. Stat. § 518.64, subd. 2(b)(1) (articulating presumptions for support modification proceedings.) Accordingly, his child support obligation may be modified. Minn.Stat. § 518.64, subd. 2(a) (2000) (child support obligation may be modified upon a showing of one or more changes in circumstances, including "substantially increased or decreased earnings of a party," that renders the prior order unfair and unreasonable). Without the $900 in imputed income, Carey's monthly income is $633, and his guideline-determined child support obligation is $107.61. Because the minor child receives social security derivative benefits in excess of that amount, those payments satisfy Carey's support obligation. Carey owes no current support, except for the derivative benefits provided by social security. See Holmberg v. Holmberg, 578 N.W.2d 817, 827 (Minn.App.1998) (holding that obligor's child support obligation is offset by social security disability benefits paid on behalf of obligor's child), aff'd on other grounds, 588 N.W.2d 720 (Minn. 1999). III. Carey also argues that his income is below the federal poverty line and that he, therefore, should not be required to contribute toward child-care costs. We agree. We have previously noted that social security disability benefits are designed to protect the recipient from poverty, and the recipient receives the minimum amount necessary to do so. Becker County Human *753 Servs. v. Peppel, 493 N.W.2d 573, 575 (Minn.App.1992). Despite this laudable goal, the amount of benefits Carey receives, $633 per month, still places him below the poverty level, which for the year 2001 for a family of one is approximately $715 per month. 66 Fed.Reg. 10695-10697 (Feb. 16, 2001). Finally, Minnesota statutory requirements recognize the need to consider whether an obligor falls below the federal poverty level. Minn.Stat. § 518.551, subd. 5(b) provides: The court shall review the work-related and education-related child care costs paid and shall allocate the costs to each parent in proportion to each parent's net income, as determined under this subdivision, after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent. There is a presumption of substantial unfairness if after the sum total of child support, spousal maintenance, and child care costs is subtracted from the obligor's income, the income is at or below 100 percent of the federal poverty guidelines. Carey's income, without subtractions of any kind, falls below the federal poverty guidelines. The magistrate's denial of Carey's request to modify his child-care cost obligation was based in large measure on the imputation of $900 per month income to him. We have found that imputation to be erroneous and conclude that substantial unfairness would result if Carey were assessed child-care costs in his present circumstances. DECISION The value of the room, board, and miscellaneous expenses provided to Carey by his parents does not constitute income for purposes of determining his child support obligation, nor are these items earnings or resources. Excluding this value, the decrease in Carey's income results in a guidelines support obligation that is more than $50 and 20% less than the current order. Therefore, Carey has demonstrated a presumptive substantial change in circumstances making the current order unreasonable and unfair. Excluding the value of the room, board, and expenses provided by Carey's parents, Carey's monthly income is $633, and his guideline-determined child support obligation is $107.61. His child receives social security derivative benefits in excess of that amount. Therefore, we decline to assess a child support obligation beyond the social security derivative benefits now being received by the minor child. Finally, because Carey's income is below the federal poverty line, it would be substantially unfair to assess child-care costs against him. Reversed. NOTES [*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. [1] Effective September 1, 2001, Carey's $300 per month support obligation was offset by the current derivative disability benefits from the Social Security's Retirement, Survivors, and Disability Insurance program (RSDI benefit) in the amount of $112 paid to the minor child each month, resulting in a net monthly obligation of $188. Appellant is also the father of another child with a different mother. He has not been assessed child support for that child, who also receives $112 in dependent benefits from the Social Security Administration. [2] Carey appealed directly from the magistrate's order without seeking review of that order under Minn. R. Gen. Pract. 376.01. The parties do not argue and we do not address the impact of this procedure on our scope of review. See Minn. R. Gen. Pract. 378.01 advisory comm. cmt. (addressing scope of review of rulings made in expedited child support process). Moreover, upon reviewing this record and the arguments made by these parties, we conclude that the ultimate result in this appeal would not change if we were to more fully address the scope of review in this case. Cf. Putz v. Putz, No. C7-01-257, 645 N.W.2d 343, 346-47, 2002 WL 1291822, at *3 n. 5, *4 (2002) (not addressing scope of review but applying the standard of review generally applicable to child support matter where the appeal was taken directly from magistrate's order and parties agreed that the generally applicable standard of review was the proper standard). [3] Ramsey County argues that the magistrate's reference to "in-kind income" to characterize the value of the necessities provided to Carey by his parents is a word choice and not necessarily an application of Minn.Stat. § 518.551, subd. 5(b)(1), which is the mechanism for imputing "in kind" income. Respondent argues that if we find that Minn.Stat. § 518.551, subd. 5(b)(1), does not apply, the proper inquiry should be whether the value of those gifts should be included in income, regardless of the terminology used. We agree and accordingly examine all mechanisms for imputing income.

2020-01-17 22:02:07.275893+00

Seawell

*1238OPINION. Seawell: The issue is whether claimed deductions, designated losses and representing expenses incurred and paid by the petitioner during the taxable year in the operation of the Valley Ridge Farm, constituted ordinary and necessary expenses in carrying on a trade or business, within the meaning of the Revenue Act of 1921. Section 214 (a) of said Act, provides: That in computing net income there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * * * * * * * * (3) Taxes paid or accrued within the taxable year, except * * * (4) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in trade or business. There is no question as to the amount or character of the gross income nor as to the amounts incurred and paid in the operation of the farm and maintenance of the trust estate. The petitioner alleges that, in its capacity as trustee, it was in the taxable year engaged in carrying on a trade or business, to wit, the business of operating the Valley Ridge Farm. The answer of the Commissioner denies this and also denies that the losses sustained ,in the operation of the farm are deductible from the income or other assets of the trust estate. It, therefore, becomes material to ascertain whether the trustee was, in fact, operating the Valley Ridge Farm as a business. The trust agreement specifically requires the trustee to pay “ all expenses of operating the Valley Ridge Farm.” Ordinarily a farm is a business and when so conducted in reality all the “ ordinary and necessary expenses paid or incurred ” therefor are deductible from the gross income in computing net income under the statute. Was the Valley Ridge Farm so conducted as a business? The petitioner says it was; the respondent says it was not. The burden of proof is on the petitioner. Rule 30; Alfred M. Bedell, 9 B. T. A. 270. *1239There is nothing in the terms of the trust agreement indicating that the farm should be operated on a commercial basis, except the fact that the enterprise is called a farm. Neither is there evidence that the farm was operated as a business for profit. The stipulated facts rather indicate that the 500 acres of land were kept as a country estate, a place of rest and recreation and amusement for the beneficial owners. The fact that, while occupying the premises without rental charge to them, the children of the settlor should, under the terms of the trust, personally pay their own servant hire and house-supply bills, does not change the indicated situation. In Thacker v. Lowe, 288 Fed. 994, it was held that unless it was found from the evidence that the farm there in question was operated for “ profit,” rather than “ conducted only for the pleasure of the owner and as a part of the estate of a country gentleman,” it should be held that the farm was not conducted as a business. The fact that the owner may receive pleasure from the operation of a farm makes no difference if it is, in fact, operated as a business. The fact that a profit is not realized makes no difference if the operation is on commercial lines and the element of intended profit is present. In the operation of the Valley Ridge Farm for the taxable year the gross income.appears from the stipulation, and our findings of fact in accordance therewith, to have been the sum of $2,676.62, while the expenditures for the same period amounted to $42,129.68, a net loss of $39,453.06. It is said that the relation of receipts to expenditures, in an enterprise such as is here in question, may not determine intent, but that such a relationship may be an evidentiary fact to be taken into consideration in arriving at what the intent is, whether to engage in a business or to pursue a pleasure. Thomas F. Sheridan, 4 B. T. A. 1289, 1301. See also Wilson v. Eisner, 282 Fed. 38. The large unitemized accounts for hired help and miscellaneous expenses arouse a suspicion, at least, of walks and grounds, perennial flowers, lawns, sequestered nooks and sheltered groves about the dwelling provided without rental to the children, and of tennis courts, all kept and dressed by workmen trained for the purpose and under continuous pay. Such expenditures, made for personal or family use and benefit, are expressly not deductible. Section 215 (a) (1) and (2), Revenue Act of 1921. In cases heretofore coming before the Board involving the matter here in controversy, there has usually been offered evidence of the taxpayer, or others cognizant of the facts, that the enterprise, although showing a loss, has been, in fact, operated with a hope of profit and as a business with that end in view. The petitioner here fails to offer such evidence or to secure a stipulation of facts *1240from which we can ascertain the real purpose in setting np the farm for operation under the trust. Neither are the large expenditures claimed as deductions from gross income shown to be ordinary and necessary expenses incurred in the operation of the business, even if the farming were conducted as a business. We, therefore, conclude that the petitioner has not shown itself entitled to the deductions claimed, except as to the item for taxes paid by it. By section 214 (a) (3), taxes are expressly allowed as a deduction. Reviewed by the Board. Judgment will be entered wider Rule 50.

2020-12-03 18:00:14.821145+00

https://www2.ca3.uscourts.gov/opinarch/201780np.pdf

HLD-003 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1780 ___________ In re: JAMES A. WILSON, Petitioner ____________________________________ On a Petition for Writ of Mandamus from the United States District Court for the District of Delaware (Related to D. Del. Civ. No. 1-13-cv-01763) ____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. November 24, 2020 Before: SMITH, Chief Judge, CHAGARES and SHWARTZ, Circuit Judges (Opinion filed: December 3, 2020) _________ OPINION * _________ PER CURIAM James A. Wilson petitions for a writ of mandamus, asking us to order a United States Bankruptcy Judge to lift the automatic bankruptcy stay in a particular case. We will deny the petition for a writ of mandamus. Wilson, a state prisoner, has an excessive force lawsuit pending in the United States District Court for the District of Delaware, against Probation Officer Rick Porter. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. After the District Court scheduled a trial, Porter informed that Court that he had filed a personal bankruptcy petition the year before. Dkt. #81. Porter’s notice to the District Court occurred in January 2019, see Dkt. #53, months after his bankruptcy plan had been confirmed (May 2018). The District Court imposed a stay of proceedings because of the automatic stay mandated by the Bankruptcy Code, 11 U.S.C. § 362 . Dkt. #95. Wilson asked the District Court to reconsider, Dkt. #98, but it denied his request, Dkt. #99. The District Court informed Wilson that any request for lifting the stay should be addressed to the United States Bankruptcy Court for the District of Delaware. Id. In April 2019, Wilson then filed a motion for relief from the stay in the Bankruptcy Court, Bankr. D. Del. No. 18-10669 (“Bankr. Dkt.”), Bankr. Dkt. #33, which was denied in July 2019, Bankr. Dkt. #49. Wilson did not appeal that denial. The Bankruptcy Court’s docket reflects that Wilson sent that court a letter in December 2019, asking again that it lift the stay. Bankr. Dkt. #54. The docket does not reflect that any action has been taken on the letter. A writ of mandamus is a drastic remedy available only in extraordinary circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372 , 378 (3d Cir. 2005). A writ should not issue unless the petitioner has “no other adequate means to attain the relief” sought and he has shown that his right to the writ is “clear and indisputable.” Id. at 378-79 (quoting Cheney v. United States, 542 U.S. 367 , 380-81 2 (2004)). Further, a mandamus action is not a substitute for an appeal. Madden v. Myers, 102 F.3d 74 , 77 (3d Cir. 1996). Wilson does not meet these requirements. Wilson has not demonstrated that he has “no other adequate means to attain . . . relief.” See In re Diet Drugs Prods. Liab. Litig. at 378-79. Indeed, he has demonstrated that he is aware that he can move the Bankruptcy Court to lift the automatic stay. But when the Bankruptcy Court denied his motion, Wilson did not appeal that decision. See United States v. Pelullo, 178 F.3d 196 , 200 (3d Cir. 1999) (“Although the stay of a civil action generally is interlocutory and not appealable, in bankruptcy cases, lifting the automatic stay and a denial of relief from the stay are appealable.”); see also Madden, 102 F.3d at 77 (noting that a mandamus action is not a substitute for an appeal). Mandamus relief may be warranted when a court’s “undue delay is tantamount to a failure to exercise jurisdiction,” Madden, 102 F.3d at 79 . We thus have considered whether Wilson is asking us to direct the Bankruptcy Court to rule on his December 2019 letter asking again that it lift the stay. Bankr. Dkt. #54. We conclude that the time that the request has been pending on the docket gives us some pause. But because the letter was not in the form of a motion, see Fed. R. Bankr. P. 9014, the Bankruptcy Court may have overlooked Wilson’s request. See also In re Fine Paper Antitrust Litig., 685 F.2d 810 , 817 (3d Cir. 1982) (explaining that a court has discretion in managing the cases on its docket). We are confident that the Bankruptcy Court will address Wilson’s filing 3 promptly, particularly if Wilson brings it to the Court’s attention again; we express no opinion regarding the filing’s merit or propriety. For all of these reasons, we will deny the petition for a writ of mandamus. 1 1 Our denial is without prejudice to Wilson renewing in the Bankruptcy Court his motion for relief from the stay, see In re Wilson, 116 F.3d 87 , 90 (3d Cir. 1997), or filing a complaint in the Bankruptcy Court seeking a declaration of non-dischargeability of his potential claim against Porter, see 11 U.S.C. §§ 523 (a)(3)(B), 523(a)(6); see also 11 U.S.C. § 1328 (h). We express no opinion regarding the merit or propriety of these potential filings. 4

2020-12-03 18:00:26.10901+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/18-35072.pdf

FILED FOR PUBLICATION DEC 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA DEL CARMEN MEDINA No. 18-35072 TOVAR; ADRIAN JOVAN ALONSO MARTINEZ, D.C. No. 3:17-cv-00719-BR Plaintiffs-Appellants, OPINION v. LAURA B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; CHAD F. WOLF, Secretary, Department of Homeland Security; WILLIAM P. BARR, Attorney General, Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Argued and Submitted En Banc September 23, 2020 San Francisco, California Before: Sidney R. Thomas, Chief Judge; and Susan P. Graber, M. Margaret McKeown, Johnnie B. Rawlinson, Consuelo M. Callahan, Mary M. Murguia, Paul J. Watford, Mark J. Bennett, Daniel P. Collins, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Graber; Concurrence by Judge Collins;  Dissent by Judge Callahan GRABER, Circuit Judge: Plaintiff Maria Medina Tovar, a native and citizen of Mexico, came to the United States with her family in 1998, at the age of six. When she was twelve, a stranger raped her at knife-point in her home. She cooperated with law enforcement officials and, because of the rape, has suffered substantial trauma. In 2013, Medina Tovar filed a Form I-918 seeking a U visa, which is designed to grant legal status to certain non-citizen victims of crime who assist law enforcement. In September 2015, she married Plaintiff Adrian Alonso Martinez, who also is a native and citizen of Mexico. Thereafter, Medina Tovar was granted U-visa status effective October 1, 2015. On March 29, 2016, she filed a Form I- 918, Supplement A, which is a petition for a derivative U visa, for her husband. Defendants, acting on behalf of United States Citizenship and Immigration Services ("USCIS"), denied the petition because Plaintiffs were not married when Medina Tovar filed her initial petition in 2013. Title 8 C.F.R. § 214.14 (f)(4) contains the regulatory requirement that spouses be married at the time that the Form I-918 is filed. Plaintiffs then brought this action for declaratory and injunctive relief. The district court granted Defendants’ motion for summary judgment and denied 2 Plaintiffs’ motion for summary judgment, ruling that Congress did not address directly the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation is a reasonable interpretation of the governing statute. We have jurisdiction under 28 U.S.C. § 1291 . On de novo review, Herrera v. USCIS, 571 F.3d 881 , 885 (9th Cir. 2009), we hold that 8 C.F.R. § 214.14 (f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted. Accordingly, we reverse. THE STATUTE Title 8 U.S.C. § 1101 (a)(15)(U) sets forth the requirements for obtaining a U visa. In relevant part, the statute grants legal status to (i) . . . an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that– (I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii); (II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii); 3  (III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and (IV) the criminal activity described in clause (iii) . . . occurred in the United States . . . ; (ii) if accompanying, or following to join, the alien described in clause (i)– (I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or (II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and (iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape . . . . 8 U.S.C. § 1101 (a)(15)(U) (emphases added). Medina Tovar unquestionably fits the statutory criteria, as confirmed by USCIS’s grant of a U visa. THE REGULATION The regulation that Plaintiffs challenge provides in relevant part: Except as set forth in paragraphs (f)(4)(i) and (ii) of this section, the relationship between the U-1 principal alien and the qualifying family 4  member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member’s subsequent admission to the United States. (i) If the U-1 principal alien proves that he or she has become the parent of a child after Form I-918 was filed, the child shall be eligible to accompany or follow to join the U-1 principal alien. (ii) If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication. 8 C.F.R. § 214.14 (f)(4) (emphasis added). Plaintiffs contest only the emphasized requirement that the spousal relationship must exist at the time the original Form I- 918 is filed. ANALYSIS When reviewing the validity of a regulation, we apply the two-step process that the Supreme Court established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 842–43 (1984). Coyt v. Holder, 593 F.3d 902 , 905 (9th Cir. 2010). At step one, we must decide whether the intent of Congress is clear from the terms of the statute that it enacted or whether, instead, the statute is ambiguous. 5 Chevron, 467 U.S. at 842–43. To maintain the proper separation of powers between Congress and the executive branch, we must "exhaust all the traditional tools of construction" before we "wave the ambiguity flag." Kisor v. Wilkie, 139 S. Ct. 2400 , 2415 (2019) (internal quotation marks omitted). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842–43. If, but only if, the statute is ambiguous after using ordinary tools of construction, we reach step two. Id. at 843 . At step two, we ask whether the agency has construed the ambiguity in a permissible way. Id. We have applied the Chevron framework in the immigration context. In doing so, we have held that an agency may not add a new requirement when Congress has specified the criteria for a particular immigration benefit. Schneider v. Chertoff, 450 F.3d 944 , 956 (9th Cir. 2006); Bona v. Gonzales, 425 F.3d 663 , 670 (9th Cir. 2005). That is precisely the situation we face here. The question that the regulation answers is this: At what point must a person be married to the principal applicant to first qualify for a derivative U visa as a spouse—(a) when the application is filed, or (b) when the principal applicant receives a U visa? 6  The regulation adopts the former view. Defendants reason that the statute fails to define "accompanying, or following to join," making the statute ambiguous, but see Averett v. U.S. Dep’t of Health & Human Servs., 943 F.3d 313 , 315 (6th Cir. 2019) ("A statute’s terms are not ambiguous simply because the statute itself does not define them."), and that the regulation imposes reasonable requirements because an after-acquired spouse is not "accompanying, or following to join," the principal U-visa applicant. But, when we employ traditional tools of interpretation, the statute plainly answers "no" to the question whether the spousal relationship must exist at the time the original U-visa petition is filed. Two principles are relevant to our analysis. First, Congress clearly thought about the timing question. With respect to principal petitioners who are younger than 21, Congress expressly provided that an unmarried sibling must have been younger than 18 at the time the principal petitioner filed for U-visa status. "[I]n the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien" are qualifying relatives. 8 U.S.C. § 1101 (a)(15)(U)(ii)(I). By contrast, with respect to other relatives—spouses, 7 children, and parents—the statute contains no similar reference to or reliance on the date of the principal petitioner’s application. One of the most common tools of statutory construction is this: "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Nken v. Holder, 556 U.S. 418 , 430 (2009) (internal quotation marks and brackets omitted). That maxim is especially apt here, because the distinction appears in a single paragraph, 8 U.S.C. § 1101 (a)(15)(U)(ii). Congress intended that the timing of the petition is relevant with respect to only one category of relatives: unmarried siblings under 18 years of age. Indeed, the regulation expressly recognizes that children of a principal petitioner are qualifying relatives even if they were not born when the Form I-918 was filed, 8 C.F.R. § 214.14 (f)(4)(i). Yet the regulation fails to recognize that the statute treats timing identically for spouses and children. By giving "these same words a different meaning for each category [of non-citizen]," the agency "invent[ed] a statute rather than interpret[ing] one." Clark v. Martinez, 543 U.S. 371 , 378 (2005). 8  Second, Congress’s use of the phrase "accompanying, or following to join," requires the same interpretation of the statute. Earlier immigration laws contained the same phrase. See Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 153 , 162. Indeed, Congress used the phrase "accompanying or following to join" to define spouses who may be treated as derivative beneficiaries when a non-citizen adjusts her status to that of a lawful permanent resident under 8 U.S.C. § 1255 (i). See 8 U.S.C § 1255(i)(1)(B) (incorporating 8 U.S.C. § 1153 (d)). Under this 1994 enactment, spouses "accompanying or follow to join" the principal petitioner may be treated as such so long as the spousal relationship exists before the government grants the principal’s application for adjustment of status. Landin-Molina v. Holder, 580 F.3d 913 , 919 (9th Cir. 2009) (citing Matter of Naulu, 19 I. & N. Dec. 351 , 352 n.1 (BIA 1986)). When Congress added the "accompanying, or following to join" phrase to § 1101(a)(15)(U)(ii) through the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 801, 119 Stat. 2960 , 3054 (2006), that phrase had uniformly, and for decades, been interpreted to mean that eligibility for derivative status is measured at the time the principal petitioner is granted an immigration benefit, not at the earlier time when the principal petitioner applied for that benefit. See Santiago v. INS, 526 F.2d 488 , 490–91 (9th 9 Cir. 1975) (en banc) (identifying eligible derivative beneficiaries as those who have a qualifying relationship with the principal petitioner when the principal petitioner "actually entered" or at the time of "the grant of a preference" to the principal). Indeed, a policy memorandum from the former INS stated that "after- acquired" children and spouses may "adjust under [§ 1255(i)] as long as they acquire the status of a spouse or child before the principal alien ultimately adjusts status." Landin-Molina, 580 F.3d at 919 (quoting Accepting Applications for Adjustment of Status Under Section 245(i), HQ 70/23.1-P, HQ 70/8-P, at 5 (June 10, 1999), reproduced at 76 Interpreter Releases 1017 (July 2, 1999)). We are aware of no precedent predating 2005, and the agency has cited none, ruling that the phrase "accompanying, or following to join," either (a) referred to a time before the principal petitioner received an immigration benefit or (b) was ambiguous. Thus, we turn to a second familiar interpretive principle: "When a statutory term is obviously transplanted from another legal source, it brings the old soil with it." Taggart v. Lorenzen, 139 S. Ct. 1795 , 1801 (2019) (internal quotation marks omitted). The term "accompanying, or following to join," was obviously transplanted from other immigration statutes. The phrase therefore brought with it the settled meaning that, in the absence of an express carve-out such as 8 U.S.C. 10 § 1101(a)(15)(U)(ii)(I), the statute measures the derivative relationship only at the time the principal petitioner receives an immigration benefit. Cf. Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152 , 159 (1993) ("The phrase ‘sale or exchange’ had acquired a settled judicial and administrative interpretation over the course of a half century before Congress enacted in § 4975 the even broader statutory language of ‘any direct or indirect . . . sale or exchange.’ Congress presumptively was aware when it enacted § 4975 that the phrase ‘sale or exchange’ consistently had been construed to include the transfer of property in satisfaction of a monetary obligation." (emphasis added)). The two interpretive principles on which we rely work in tandem here. The carve-out for siblings under the age of 18 was necessary precisely because Congress understood that the settled meaning of "accompanying, or following to join," referred to the date on which an immigration benefit is granted, not to the date on which the application for that benefit was filed. In summary, we hold that the statute clearly answers the relevant interpretive question: to qualify for a derivative U visa as a spouse, a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U visa. Accordingly, our analysis ends at Chevron step one, without resort to step two. Pereira v. 11 Sessions, 138 S. Ct. 2105 , 2113–14 (2018). Title 8 C.F.R. § 214.14 (f)(4) is invalid insofar as it requires a derivative U-visa spouse to have been married to the principal petitioner when the application was filed. Plaintiffs were married by the time Medina Tovar was granted a U visa on October 1, 2015. As of March 29, 2016, when Medina Tovar petitioned for derivative U-visa status, her husband was entitled to receive a U visa if he otherwise met the requirements. REVERSED. 12 Medina Tovar v. Zuchowski, 18-35072 FILED COLLINS, Circuit Judge, with whom BUMATAY, Circuit Judge, DEC 3 2020 joins, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree with the majority that the agency regulation at issue here is inconsistent with the applicable statute, but I reach that conclusion for somewhat different reasons. I therefore concur only in the judgment. I Maria Medina Tovar is a native and citizen of Mexico who was brought to the United States in 1998 when she was six years old. She has lived in the United States ever since. In November 2004, when she was only twelve years old, Medina Tovar was sexually assaulted in Seaside, Oregon on two separate occasions by a stranger who had also repeatedly stalked her outside of her school. On June 14, 2013, she filed with U.S. Citizenship and Immigration Services (“USCIS”) a “Form I-918” petition for a so-called “U-visa,” which refers to a special type of non-immigrant visa for certain aliens who have been victims of crime in the United States. The U-visa is so named because the category of persons eligible for such visas is set forth in subparagraph (U) of § 101(a)(15) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 (a)(15)(U). In support of her application, Medina Tovar submitted a certification from the Seaside, Oregon Chief of Police attesting to her assistance in the investigation of the crimes back in 2004. In early 2014, USCIS notified Medina Tovar that she likely qualified for a U-visa but that the statutory cap for such visas for that fiscal year had already been met. She was finally notified on November 24, 2015 that her U-visa had been granted, with an effective date of October 1, 2015 (which was the first day of fiscal year 2016). During the more than two years that her application was pending, Medina Tovar married Adrian Alonso Martinez, a Mexican citizen, on September 21, 2015. Thereafter, as the holder of a primary U-visa (known as a “U-1 visa”), Medina Tovar on March 29, 2016, filed a petition for a derivative U-visa on Martinez’s behalf, using the prescribed “Form I-918, Supplement A.” However, on November 23, 2016, USCIS denied the derivative petition on the ground that Medina Tovar had not been married to Martinez on June 14, 2013, when she had filed her own petition for a U-visa. This denial was based on an agency regulation which provides that, subject to certain exceptions not applicable here: [T]he relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member’s subsequent admission to the United States. 8 C.F.R. § 214.14 (f)(4). Because the agency was bound by its own controlling regulation, Plaintiffs Medina Tovar and Martinez (“Plaintiffs”) did not attempt to pursue any further administrative remedies. Instead, in May 2017, they filed this action against the director of the relevant USCIS service center, as well as the Secretary of Homeland 2 Security (the head of the Department in which USCIS is housed) and the Attorney General. In their complaint, Plaintiffs allege that the regulation is invalid because, inter alia, it “adds a restriction that is not part of the statute enacted by Congress.” Specifically, Plaintiffs contend that the statute only requires that Martinez be married to Medina Tovar by the time that she obtained her U-visa and that they need not have been married at the time she applied for her visa. Plaintiffs also contend that the regulation’s timing requirement differed from that applied to derivative applications for other forms of immigration relief and that the resulting distinction violated the equal protection component of the Fifth Amendment’s Due Process Clause. Based on these allegations, Plaintiffs sought relief, inter alia, under the judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 –706, and under the Declaratory Judgment Act. Defendants filed a motion for summary judgment, which the district court granted. Applying the two-step framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the court first concluded that the relevant statutory language setting forth the eligibility for a derivative U- visa “did not directly address the precise question at issue as to the derivative U visa status,” and it then held that the regulation was a permissible construction of the statute. The court separately rejected Plaintiffs’ contention that the regulation violated equal protection. Plaintiffs timely appealed. After a divided panel 3 affirmed the district court’s judgment, see Medina Tovar v. Zuchowski, 950 F.3d 581 (9th Cir. 2020), we granted rehearing en banc, see Medina Tovar v. Zuchowski, 957 F.3d 1381 (9th Cir. 2020).1 II The parties have squarely placed before us the question of whether the regulatory requirement that “the relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed,” see 8 C.F.R. § 214.14 (f)(4), is consistent with the description of the class of persons 1 I disagree with the Government’s suggestion that this case became moot when, during the pendency of this appeal, Medina Tovar on July 3, 2019 became a lawful permanent resident and therefore no longer has U-visa status. As a majority of this court has concluded, the Government relied on a legally invalid ground in denying Martinez a derivative U-visa in November 2016, when Medina Tovar did have U- visa status, and I do not think that the Government has carried its heavy burden to show that “it is impossible for a court to grant any effectual relief” for the Government’s unlawful action. Knox v. Service Emps. Int’l Union, 567 U.S. 298 , 307 (2012) (emphasis added) (simplified). In arguing that we cannot order USCIS to “go back in time” and to approve her husband’s U-visa status “as of that date,” the Government relies only on Zixiang Li v. Kerry, 710 F.3d 995 (9th Cir. 2013). There, we addressed a claim challenging alleged errors in a different visa program, and we held that, because Congress had directed that the limited number of visas in question “expire[d] at the end” of each fiscal year, that “render[ed] moot any claim for a visa number from a prior year.” Id. at 1002 . In holding that no retroactive remedy was available, we emphasized that Congress had statutorily capped the number of visas available in a given year, and that the plaintiffs’ claim effectively sought to “recapture” scarce visas that had “already been allocated to other individuals.” Id. But this rationale does not apply here because derivative U-visas are explicitly not subject to a strict numerical annual allocation that expires each fiscal year. See 8 U.S.C. § 1184 (p)(2)(B) (annual cap that applies to U-1 visas does not apply to derivative U-visas). 4 who are eligible for derivative U-visas in § 101(a)(15)(U)(ii) of the INA. See 8 U.S.C. § 1101 (a)(15)(U)(ii). We evaluate that contention by applying the two- step framework established in Chevron, 467 U.S. at 842–43. Under that framework, a court first “ask[s] whether the statute is ambiguous and, if so,” the court then addresses, at step two, “whether the agency’s interpretation is reasonable.” King v. Burwell, 576 U.S. 473 , 485 (2015). In determining whether a statute is ambiguous at step one, “a court must exhaust all the ‘traditional tools’ of construction.” Kisor v. Wilkie, 139 S. Ct. 2400 , 2415 (2019) (quoting Chevron, 467 U.S. at 843 n.9) (making this observation with respect to the interpretation of agency rules, but noting that Chevron “adopt[ed] the same approach for ambiguous statutes”); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 , 1630 (2018) (explaining that under Chevron, “deference is not due unless” the traditional tools of construction do not resolve the ambiguity). In addressing whether the statute governing derivative U-visa eligibility is ambiguous on the question of when the spousal relationship must exist, the parties have focused their arguments, as the majority does, on whether one particular phrase in § 101(a)(15)(U)(ii)—“accompanying, or following to join,”—should or should not be understood to contain a temporal element that settles the question in Plaintiffs’ favor. But once the correct interpretation of a statute “is properly before the court, the court is not limited to the particular legal theories advanced by the 5 parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 , 99 (1991); accord Thompson v. Runnels, 705 F.3d 1089 , 1098 (9th Cir. 2013). I agree with the majority’s ultimate conclusion that the plain language of the statute only requires that the spousal relationship be in existence by the date that the primary applicant (here, Medina Tovar) is granted her U-visa, but my reasoning is based more narrowly on the unique wording of § 101(a)(15)(U).2 The agency’s attempt by regulation to narrow the class of spouses who are eligible for derivative U-visas to only those persons who were spouses on the day the primary applicant applied for such a visa therefore fails at Chevron step one. A As with any question of statutory interpretation, we must “begin with the text of the statute,” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 , 7 (2011), and here the statute unambiguously addresses the temporal issue of when the derivative applicant must be the “spouse” of the primary applicant. Clause (i) of § 101(a)(15)(U) of the INA describes the class of primary persons who are eligible for U-visas, and clause (ii) of that same subsection sets 2 I therefore express no view as to whether the majority is correct in its broader holding that the phrase “accompanying, or following to join,”—a phrase that appears in literally dozens of immigration provisions—itself includes a temporal component. 6 forth the class of persons who may obtain derivative U-visas. 8 U.S.C. § 1101 (a)(15)(U). Specifically, cause (ii) states that the following persons are eligible for derivative U-visas: (ii) if accompanying, or following to join, the alien described in clause (i)— (I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or (II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien . . . . 8 U.S.C. § 1101 (a)(15)(U)(ii). Because Medina Tovar was already 21 years of age when she first filed her primary U-visa application, there is no dispute that the relevant subclause here is (ii)(II). Martinez is therefore eligible for a U-visa if he is (1) “accompanying, or following to join, the alien described in clause (i)” and (2) is the “spouse . . . of such alien.” Id. The common link in these two requirements is the phrase “alien described in clause (i),” because Martinez must be both the “spouse” of such a person and “accompanying, or following to join,” that same person. An “alien described in clause (i)” includes a person who—subject to certain limitations that are not at issue here with respect to Medina Tovar—meets the following description: 7  (U)(i) . . . an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that— (I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii); (II) the alien . . . possesses information concerning criminal activity described in clause (iii); (III) the alien . . . has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and (IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States . . . 8 U.S.C. § 1101 (a)(15)(U)(i) (emphasis added). Under the plain terms of this provision, an “alien described in clause (i)” is someone who “files a petition for [U-visa] status” but only “if the Secretary of Homeland Security determines” that the petitioner meets the four criteria set forth in (I)–(IV). See id. (emphasis added). The principal U-visa holder, therefore, is not an “alien described in clause (i)” merely because, as an underlying factual matter, she actually satisfies each of the four enumerated criteria in subclauses (I)–(IV). Rather, she does not and cannot meet the definition of an “alien described in clause (i)” unless and until USCIS affirmatively grants that alien’s U-visa petition. That makes the statutory issue in this case relatively straightforward. The date on which Medina Tovar first became an “alien described in clause (i)” was on 8 October 1, 2015, which was the effective date on which her petition was granted. Prior to that date, she was just an applicant for a principal U-visa and not an “alien described in clause (i).” Clause (ii) of the statute tells us that the class of persons who may apply for derivative U-visas includes the “spouse” of an “alien described in clause (i)” who is “accompanying, or following to join,” that person. By using the phrase “alien described in clause (i),” the definition of derivative U-visa eligibility in clause (ii) thereby necessarily incorporates the same temporal aspect that is inherent in clause (i). That is, because an “alien described in clause (i)” only means an alien who has been affirmatively “determine[d]” to be eligible for a U- visa, the very earliest that someone (such as Martinez) could possibly be said to be “the spouse . . . of such alien” is likewise when that alien’s principal U-visa application is approved. The question, then, is whether Martinez was the “spouse” of Medina Tovar and was “accompanying, or following to join,” her on the day that she first became an “alien described in clause (i)”—viz., October 1, 2015. Because Medina Tovar and Martinez were married ten days earlier on September 21, 2015, he was indisputably the “spouse . . . of such alien” on October 1. And because the Government does not dispute that, if Martinez was Medina Tovar’s “spouse” on the relevant day, he was also “accompanying, or following to join,” her on that same day, it follows that Martinez meets the statutory definition in clause (ii) and was eligible for a derivative U-visa. Cf. Landin-Molina v. Holder, 9  580 F.3d 913 , 918–19 (9th Cir. 2009) (eligibility of a “spouse” who is “accompanying or following to join” a principal alien for a derivative immigrant visa under INA § 203(d), 8 U.S.C. § 1153 (d), implicitly includes a “temporal element of already being a ‘spouse’” at “the time the principal adjusted status” (emphasis added)). B In addition to being compelled by the statute’s plain language, there are three additional textual clues in the statute that strongly confirm the correctness of this reading. The first two relate to the statute’s special rules that apply in the case of a primary U-visa applicant who is under the age of 21, and so it is important first to set forth what those different rules are. As noted earlier, the statutory provision that defines derivative U-visa eligibility contains two separate subclauses, one that governs cases in which the primary applicant “is under 21 years of age” and one for cases in which that applicant “is 21 years of age or older.” 8 U.S.C. § 1101 (a)(15)(U)(ii)(I)–(II). See supra at 7. For a primary applicant (such as Medina Tovar) who is 21 or older, the persons who are eligible for derivative U-visas are limited to the applicant’s (1) “spouse” and (2) “children” and, for the reasons explained earlier, those relationships would be determined as of the date on which the primary applicant’s U-visa request is approved. Id. § 1101(a)(15)(U)(ii)(II). But “in the case of an 10 alien described in clause (i) who is under 21 years of age,” the persons eligible for derivative U-visas are the primary applicant’s (1) “spouse”; (2) “children”; (3) “unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause”; and (4) “parents.” Id. § 1101(a)(15)(U)(ii)(I). Absent any contrary indications in the statutory text, the determination as to whether a person falls within one of these four categories would likewise be made at the time the primary applicant’s U-visa is granted. But here, there are contrary indications, because, in the case of an under-21 primary applicant, Congress has created two special rules that override the otherwise applicable default temporal rule. First, in the case of “unmarried siblings under 18 years of age,” the statute specially provides that the determination of whether the unmarried sibling is “under 18 years of age” is to be made “on the date on which such [primary] alien applied for status under such clause.” 8 U.S.C. § 1101 (a)(15)(U)(ii)(I). The existence of this special language confirms that, without it, the applicable temporal rule would have been different, and it also confirms that the temporal rule is different in those instances in INA § 101(a)(5)(U)(ii) in which that special language is not used. See Russello v. United States, 464 U.S. 16 , 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts 11 intentionally and purposely in the disparate inclusion or exclusion.” (simplified)). Thus, had Congress wanted to have the determination of who counts as a “spouse” made on that earlier date—i.e., rather than on the date on which the primary applicant becomes an “alien described in clause (i)”—it presumably would have applied that same distinctive phrase to the term “spouse” as well. But Congress included that phrase only in one of the four categories of aliens in the subclause governing under-21 primary applicants, and it did not include that phrase at all in the separate subclause governing 21-and-over primary applicants. The statute’s second special textual rule relates to another aspect of derivative U-visa eligibility “in the case of an alien described in clause (i) who is under 21 years of age.” 8 U.S.C. § 1101 (a)(15)(U)(ii)(I). Because, as explained, a primary U-visa applicant does not become “an alien described in clause (i)” until his or her primary application is approved, the statutory phrase “an alien described in clause (i) who is under 21 years of age,” without more, would necessarily mean that the age determination is made as of the date that the primary application is approved. That would be a very harsh rule, however, because it would mean that the tag-along derivative applicants might lose their eligibility simply because the primary application took too long to process. It is unsurprising, therefore, that Congress enacted a special temporal rule that expressly precludes that result. Thus, the description of who is eligible for a primary U-visa in clause (i) of INA 12 § 101(a)(15)(U) is explicitly made “subject to section 1184(p) of this title [§ 214(p) of the INA].” Id. That section, in turn, contains a provision stating that: An alien described in clause (i) of section 1101(a)(15)(U) of this title [§ 101(a)(15)(U) of the INA] shall continue to be treated as an alien described in clause (ii)(I) of such section if the alien attains 21 years of age after the alien’s application for status under such clause (i) is filed but while it is pending. 8 U.S.C. § 1184 (p)(7)(B). By providing that a primary applicant who was under 21 when the application was filed shall continue to be treated as being under 21 for derivative-eligibility purposes, this provision thus expressly overrides what would otherwise have been the ordinary meaning of the relevant language in INA § 101(a)(15)(U)(i). The need for, and existence of, this special temporal rule— which uses the date of filing as controlling rather than the date of approval—again confirms that, absent such a special rule, the age of an “alien described in clause (i)” would have been determined at the time that the U-visa petition was approved. The existence of this special temporal provision thus further confirms the plain meaning of INA § 101(a)(15)(U), as set forth earlier.3 3 Moreover, the statute’s use of the term “treated” underscores that the situation described by INA § 214(p)(7)(B) is otherwise contrary to what the applicable legal rules would require. Thus, once a primary U-visa application is approved and that person becomes an “alien described in clause (i)”—which is when derivative applications can first be adjudicated—the alien shall then “continue to be treated” as meeting the under-21 specification in subclause (ii)(I) even though the alien does not actually meet that specification because “the alien attain[ed] 21 years of age after the alien’s application for status under such clause (i) [was] filed but while it [was] pending.” 8 U.S.C. § 1184 (p)(7)(B). 13  The statute’s third textual clue relates to the derivative U-visa eligibility of the “children” of either type of primary U-visa recipient—viz., the “children” of “an alien described in clause (i) who is under 21 years of age” and the “children” of “an alien described in clause (i) who is 21 years of age or older.” 8 U.S.C. § 1101 (a)(15)(U)(ii). The statutory definition of “child” that applies to titles I and II of the INA—which titles include the U-visa provisions in INA § 101(a)(15)(U) and § 214(p)—states that a “child,” in addition to meeting certain other requirements, must be “an unmarried person under twenty-one years of age.” 8 U.S.C. § 1101 (b)(1) (emphasis added). As previously explained, absent some provision to the contrary, the determination of whether a person is a “child” of “an alien described in clause (i)” would be made as of the date that person’s primary- applicant parent first became “an alien described in clause (i)”—i.e., it would be made as of the date the parent’s U-1 visa was granted. This would again mean that a derivative alien who was under 21 years of age when the primary alien applied for U-visa status could lose that chance for derivative eligibility simply due to a delay in processing the primary alien’s application. But Congress again overrode that harsh result by enacting INA § 214(p)(7)(A), 8 U.S.C. § 1184 (p)(7)(A). This provision explicitly changes the date as of which the age of a primary U-visa holder’s child is calculated: 14  An unmarried alien who seeks to accompany, or follow to join, a parent granted status under section 1101(a)(15)(U)(i) of this title [§ 101(a)(15)(U)(i) of the INA], and who was under 21 years of age on the date on which such parent petitioned for such status, shall continue to be classified as a child for purposes of section 1101(a)(15)(U)(ii) of this title, if the alien attains 21 years of age after such parent’s petition was filed but while it was pending. 8 U.S.C. § 1184 (p)(7)(A).4 The need for this special temporal rule confirms yet again that, in its absence, the plain meaning of INA § 101(a)(15)(U) sets a temporal requirement that the relevant characteristics of derivative U-visa applicants are to be determined as of the date on which the primary U-visa applicant first becomes “an alien described in clause (i),” which is the date that the primary U-visa application is approved. * * * The relevant statutory text thus makes overwhelmingly clear that the determination of whether someone is a “spouse” of an “alien described in clause (i)” must be made as of the date that the primary applicant becomes such an alien, which is the effective date that the primary application is granted. And here, Martinez was indisputably Medina Tovar’s spouse on that date.5 4 Like § 214(b)(7)(B)’s use of “treated,” this provision’s use of “classified” similarly denotes that the applicant will be deemed to meet a criterion that he or she actually does not satisfy. See supra note 3. 5 The dissent charges that I have engaged in a “fine-grained parsing of the statutory text,” see Dissent at 10 n.2—a charge to which I am honored to plead guilty. 15  III Because the statutory definitions of U-visa eligibility contain their own built-in temporal element, the agency lacked the authority to establish an earlier temporal requirement that is stricter than the one Congress established. To the extent that 8 C.F.R. § 214.14 (f)(4) purports to do so, it is legally invalid. Because Martinez satisfied the statutory requirement that the regulation improperly sought to modify, Defendants acted unlawfully in denying him a U-visa on that basis.6 I would therefore reverse the district court’s judgment and remand the matter for further proceedings. 6 This conclusion moots Plaintiffs’ equal protection challenge, and I therefore do not address it. 16  FILED Medina Tovar v. Zuchowski, No. 18-35072 DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CALLAHAN, Circuit Judge, with whom BRESS and BENNETT, Circuit Judges join, dissenting: In the battle of competing aphorisms I think that “context matters” prevails over the interpretive canon “bringing the old soil with it.” The majority looks at the inherently ambiguous language in 8 U.S.C.§ 1101(a)(15)(U)(ii)—“if accompanying, or following to join”—and somehow concludes that Congress commanded that “a person need not have been married to the principal applicant at the time the application was filed, so long as the marriage exists when the principal applicant receives a U visa.” Op. at 11. Perhaps this is a reasonable interpretation of the language, but I dissent because it is not the only reasonable interpretation. More importantly, by conjuring up Congress’s “understanding,” the majority unreasonably constricts the agency’s responsibility to interpret the ambiguous statute. This is an invitation to mischief in at least two ways. First, in light of the time it takes for the processing of a U visa, it is an invitation to commit marriage fraud by creating a means by which a person who is not legally in the country may obtain legal status by marrying a U-visa applicant before the application is granted. Second, the opinion suggests that courts can dictate to an agency an interpretation of a statute by searching precedents in different contexts to establish a binding 1 legislative understanding. Indeed, it does so under the first prong of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), asserting that the intent of Congress is clear. See Op. at 7. Although, as Judge N.R. Smith noted in his opinion for the three-judge panel, “Congress has never directly addressed when a qualifying relationship must exist,” Medina Tovar v. Zuchowski, 950 F.3d 581 , 587 (9th Cir. 2020), rehearing en banc granted, 957 F.3d 1381 , the majority reaches its conclusion by focusing on subclause (ii)(I), which states: in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; (emphasis added). This provision states that, for a U-visa applicant (an alien described in clause (i)), a sibling may qualify for a derivative U visa if that sibling was not married and was under 18 when the principal applied for a U visa. This clearly limits the class of individuals who can qualify for derivative status, but it need not be interpreted as addressing “accompanying, or following to join.” At the very least, it does not do so unambiguously. Nonetheless, the majority claims that the language “unmarried siblings under 18 years of age on the date on which such alien applied for status” indicates that “Congress clearly thought about the timing question.” Op. at 7. But, as noted, it seems more likely that Congress was defining who was 2 eligible for derivative benefits. The phrase is found in the middle of a section providing that, for an applicant under the age of 21, his or her spouse, children, parents, and unmarried siblings under the age of 18 are eligible for derivative status. Congress clearly did not intend for adult unmarried siblings to be eligible. Therefore, it was necessary to draw a line, to select a date. The date of an application’s approval is unknowable at the time of a U-visa application is filed. But the date of the application is obvious and provides clear guidance to the applicant and his or her siblings. The majority proceeds to employ the maxim “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Op. at 7–8 (quoting Nken v. Holder, 556 U.S. 418 , 430 (2009)). But this general presumption is premised on the determination that Congress’s use of particular language in the first instance was intended to address, or inherently addresses, the issue in the second section. In our case, however, the language at issue was used to define which siblings might be eligible for derivative benefits; it does not clearly define or address “accompanying, or following to join,” even for such eligible siblings. A careful reading of the Chief Justice’s opinion in Nken supports this distinction. That case concerned whether a statutory provision addressing certain 3 injunctions also applied to stays. 556 U.S. at 431 . The Court’s opinion acknowledges “that statutory interpretation turns on ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’” Id. at 426 (quoting Robinson v. Shell Oil Co., 519 U.S. 337 , 341 (1997)). However, after stating the maxim quoted by the majority, the Court proceeded to observe that the language at issue was not where it would naturally be if intended to apply to stays. Id. at 431 . It also commented that it “frequently takes Congress’s structural choices into consideration when interpreting statutory provisions.” Id. at 431 . Here too, we have language which arguably could be interpreted as addressing “accompanying, or following to join” but which is not located where it would naturally be located to do so and which serves, and presumably was intended to serve, a distinct purpose: limiting the eligibility for siblings of an under 21-year-old applicant to those who are under the age of 18.1 Indeed, the majority seems to reason backward, arguing that “Congress intended that the timing of the petition is relevant with respect to only one category of relatives” and “the regulation fails to recognize that the statute treats timing identically for spouses 1 The very narrowness of this exception weighs against it being intended to define the broad term that applies to all derivative applicants. The clause “on the date on which such alien applied for status” applies only to minor siblings of an applicant who is herself under 21 years of age. 4 and children.” Op. at 8. But this assumes that the subclause defining the eligibility of minor siblings of principals who are under 21-years-old was intended to “treat timing.” Perhaps this is a possible interpretation of the statute, but it is not the only or the most likely explanation of Congress’s intent. And even if the majority were correct that the subclause concerning minor siblings addresses the timing question, the majority errs in concluding that this subclause unambiguously answers the timing question as to spouses. Because the subclause refers to “unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause,” the majority reasons that “the timing of the petition is relevant” only as to this “one category of relatives.” Op. 8. But even if that negative implication is a permissible reading of the statute, it is certainly not inevitable. As the three-judge panel majority explained, unlike spouses and parents, siblings face the possibility of “aging out” while the U-visa petition is pending. See Medina Tovar, 950 F.3d at 589. Thus, “[t]he fact that Congress addressed when the alien and other qualifying relatives should be assessed to preclude them from aging out, does not unambiguously mean that Congress intended that spouses be assessed at a different time than the date of application.” Id. Spouses are differently situated from siblings because spouses cannot age out. Id. Thus, the 5 statutory text does not command that the date of assessment for spouses must be different than that for siblings. The majority asserts that the phrase “accompanying, or following to join,” has existed in various statutes for decades and suggests that it has been uniformly interpreted. But the majority does not cite a single instance in which either a court or agency has held that the phrase precluded the agency from requiring that the marriage exist at the time of a U-visa application. Neither of the Ninth Circuit’s cases cited by the majority does so. These cases do consider the phrase “accompanying, or following to join” but not in a manner that supports the majority’s position. In Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009), Landin-Molina conceded that he could not satisfy the “accompanying, or following to join” requirement “because his marriage occurred after his wife adjusted to lawful permanent resident status.” Id. at 919 . We explained: The plain language of § 1153(d) requires that the derivative “spouse” accompany or follow to join the principal “spouse.” Implicitly there is a temporal element of already being a “spouse.” Thus, § 1153(d) clearly contemplates that the marital relationship exists before the principal receives immigrant status. Such a construction is consistent with our observation in Santiago[v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc),] that Congress intended to “preserve”—i.e., maintain—the unity of existing families by permitting qualifying aliens to bring their families with them or to send for them later. If the marital relationship transpires after the principal receives immigrant status, the putative derivative spouse cannot have accompanied or followed to join a “spouse” because there was simply no spouse to accompany 6  or follow at the time the principal adjusted status, and the language of § 1153(d) implicitly requires that the derivative spouse be a “spouse” before the principal adjusts status. Id. (citation omitted). Certainly, Landin-Molina required that the derivative beneficiary be married to the principal at the time the principal adjusts status. But it did not address how long prior to that date the derivative beneficiary had to be married to the principal. There is nothing inherent in the phrase “accompanying, or following to join” that would require the marriage to exist only at the time of application approval, as opposed to at the time the application is filed. The phrase “accompanying, or following to join” can reasonably be interpreted to imply that the marriage should exist when the principal applies for U-visa benefits. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en banc), does little to support the majority’s interpretation of Congress’s intent. There we held that the government was not estopped from excluding a derivative beneficiary who was erroneously admitted prior to the arrival of the principal in the United States. We explained: Petitioners initially contend that the words “accompanying, or following to join” in 8 U.S.C.§ 1153(a)(9) should be construed to also mean “preceding with the hope (or expectation) of being joined later.” There is no authority for such a construction. The plain language of the statute is designed to assure that those aliens who derive their preference cannot exercise their right to enter until the person from whom they derive their preference has actually entered. Congress clearly intended to preserve family unity by this language and to 7  permit the lawfully entering alien to either bring his family with him or to send for them later when he had the ability to do so. But there is nothing in this language to indicate that Congress ever intended that the grant of a preference to one alien would effectively work a grant of a like preference to the members of his family so that they might enter at whatever time they wished. If Congress had wished to equate derivative preferences with actual preferences the words “accompanying, or following to join” would be absent from this statute. Id. at 490–91. Thus, we found the language “plain” in regard to when a derivative beneficiary could enter the United States. But we did not otherwise comment on when the relationship had to exist. Yet again, our reference to the purpose of preserving family unity might be construed as suggesting that the relationship should exist when the beneficiary sought to enter the United States. Perhaps more importantly, regardless of how one reads our opinions in Landin-Molina and Santiago, they do not readily support the argument that Congress commanded that the spousal relationship need exist only at the time a U-visa petition is granted. Both cases were in the context of immigrant aliens, whereas the U visa is a nonimmigrant visa. See Landin-Molina, 580 F.3d at 915 ; Santiago, 526 F.2d at 489; see also 8 U.S.C. § 1101 (a)(15)(U). As the three-judge panel majority explained, “immigrant and nonimmigrant statutes are aimed at addressing different concerns, have different requirements, and extend different benefits to the status holder. Thus, although the same textual phrase— 8 ‘accompanying, or following to join’—is used in these contexts, the nature and purpose underlying the grants of status differ significantly.” Medina Tovar, 950 F.3d at 591. A U visa is not an immigration visa, but “operates to grant limited, temporary, nonimmigrant status to aliens already present in the United States who were victims of a serious crime.” Id. at 590. These differences suggest both that the date of a U-visa application is somewhat analogous to the date an immigrant enters the United States and that the interpretation of the phrase in an asylum proceeding is not necessarily applicable to a U-visa application. In addition, it is notable that the timing rules are different for asylees and refugees. For refugees the qualifying relationship must exist at the time of the refugee’s admission to the United States, whereas for asylees the relationship must have existed at the time the principal alien’s asylum application was approved. Id. at 588 (citing 8 C.F.R. §§ 207.7 (c), 208.21(b)). This underscores the conclusion that the phrase “accompanying, or following to join” does not possess a fixed meaning foreclosing the agency’s interpretation. In any event, a review of our prior cases and the matters cited by the majority fail to support its determination of Congress’s clear intent. Indeed, the majority does not assert that Congress has ever directly addressed this issue. Instead, by asserting a negative implication based on language in 8 U.S.C. 9 § 1101(a)(15)(U) and citing instances in which the phrase was interpreted in distinct contexts, it projects onto Congress an absolute view that is not supported by the text or any Congressional action. Certainly, Congress is responsible for circumscribing an agency’s responsibilities, and we have a constitutional duty to see that an agency does not exceed its authorization. But we exceed our role when we parse obscure passages in complex legislation, use distinguishable case law, and cite a “familiar interpretative principle” to ascribe to Congress not only knowledge of the agency’s alleged interpretation, but also an absolute view barring the agency’s evolving view of a statute’s ambiguous terms.2 Accordingly, I respectfully dissent because I cannot conclude that Congress understood or intended “accompanying, or following to join” to mean that the agency could not require that an applicant for a derivative benefit from a U-visa applicant be married to the principal when the U-visa application was filed. 2 I find Judge Collins’s separate concurrence similarly unpersuasive. His reading of the statute is not one that any party in this litigation has put forward. Regardless, Judge Collins’s fine-grained parsing of the statutory text at most confirms that his reading of the statute is permissible, not that it is compelled. 10

2020-12-03 18:00:26.18845+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/18-17356.pdf

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE CENTER FOR INVESTIGATIVE No. 18-17356 REPORTING, Plaintiff-Appellant, D.C. No. 3:17-cv-06557- v. JSC UNITED STATES DEPARTMENT OF JUSTICE, OPINION Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding Argued and Submitted March 6, 2020 San Francisco, California Filed December 3, 2020 Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Wardlaw; Dissent by Judge Bumatay 2 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ SUMMARY * Freedom of Information Act The panel reversed the district court’s summary judgment, and remanded for further factual development, in an action brought by the Center for Investigative Reporting (“CIR”) under the Freedom of information Act (“FOIA”), requesting that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) provide records concerning weapon ownership. CIR sought records depicting the “[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present.” ATF alleged that Congress had forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2006, 2010, and 2012. The district court held that ATF was not required to disclose the requested information under FOIA. FOIA Exemption 3 relieves an agency of its obligation to disclose material specifically exempted from disclosure by statute if that statute meets certain requirements outlined in 5 U.S.C. § 552 (b)(3). The panel held that the Tiahrt Rider did not exempt the data sought by CIR from disclosure under FOIA. The panel held that the 2012 Tiahrt Rider – which enacted the language of the 2010 Rider without any alteration – was the only * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 3 operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full. Looking to the 2010 Rider, the panel concluded that it was not a statute of exemption for FOIA purposes because even though it was enacted after the OPEN FOIA Act of 2009, it made no reference to 5 U.S.C. § 552 (b)(3). Finally, the panel held that the issue of whether the OPEN FOIA Act’s prospective definition of statutes of exemption as those that cite to 5 U.S.C. § 552 (b)(3) was an impermissible legislative entrenchment of a later Congress’s ability to create statutes of exemption was clearly waived. The panel held that the Tiahrt Rider did not deprive ATF of the funding it needed to turn over the data. The panel further held that the use of a query to search for and extract a particular arrangement or subject of existing data from the Firearms Tracing System database did not require the creation of a “new” agency record under FOIA. The panel held that based on the existing record it could not answer the question whether the Firearms Tracing System database was currently capable of producing the information CIR sought in response to a search query. The panel remanded for further factual development of the record on this issue. Judge Bumatay dissented because the majority wrongly held that the Tiahrt Amendment of 2012 must conform to an earlier statute – the OPEN FOIA Act of 2009 – to be effective, and because the majority misconstrued federal law as requiring FOIA disclosures that Congress expressly prohibited. 4 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ COUNSEL D. Victoria Baranetsky (argued), The Center for Investigative Reporting, Emeryville, California; Andrew P. Bridges and Meghan E. Fenzel, Fenwick & West LLP, Mountain View, California; for Plaintiff-Appellant. Robin M. Wall (argued), Assistant United States Attorney; Sara Winslow, Chief, Civil Division; David L. Anderson, United States Attorney; United States Attorney’s Office, San Francisco, California; for Defendant-Appellee. Aaron Mackey, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation. Mason A. Kortz and Kendra K. Albert, Cyberlaw Clinic, Harvard Law School, Cambridge, Massachusetts, for Amici Curiae Five Media Organizations and Sixteen Data Journalists. Jack Jordan, Parkville, Missouri, as Amicus Curiae.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 5 OPINION WARDLAW, Circuit Judge: When Congress passed the Freedom of Information Act (FOIA), 5 U.S.C. § 552 , it sought to “permit access to official information long shielded from public view” and thereby “pierce the veil of administrative secrecy” that clouded the workings of federal agencies. Dep’t of Air Force v. Rose, 425 U.S. 352 , 361 (1976) (internal quotation marks and citation omitted). Congress viewed this commitment to government transparency and an “informed citizenry” as “vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 , 242 (1978). After all, “[g]overnment transparency is critical” to ensure “the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies.” Hamdan v. U.S. Dep’t of Just., 797 F.3d 759 , 769–70 (9th Cir. 2015); accord Robbins Tire, 437 U.S. at 242 . Today, few issues spawn as much political debate as guns and their role in criminal activity and the government’s role in regulating these weapons. Countless individuals and entities participate in this debate, often relying on statistical data as they advocate for their preferred policy outcomes. This debate is unquestionably one of public importance. For its part, the Executive Branch has long recognized the importance of quantitative data in this arena and, to that end, has spent decades systematically investigating, or “tracing,” the origins of firearms linked to criminal activity. As of 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) had compiled the results of over 6,876,808 of those traces in an electronic database called the Firearms Tracing System (FTS). 6 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ The Center for Investigative Reporting (CIR) participates in the national debate surrounding guns in America. CIR specifically wants to report on the use in crimes of guns that had at one time been owned by law enforcement agencies. To prepare that report, CIR sought hard data from ATF, filing a FOIA request asking ATF for records depicting the “[t]otal number of weapons traced back to former law enforcement ownership, annually from 2006 to the present.” ATF, however, had never before released that information to the public, and it refused to change course in light of CIR’s request. It instead contended that Congress had forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2008, 2010, and 2012. ATF also contended that FOIA did not require ATF to run this search in the FTS database because such a query would require it to create a new agency record. We do not agree. The Tiahrt Rider does not exempt the data sought by CIR from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data. Moreover, the use of a query to search for and extract a particular arrangement or subset of existing data from the FTS database does not require the creation of a “new” agency record under FOIA. The only question that thus remains is whether the FTS database is currently capable of producing the information CIR seeks in response to a search query. We cannot answer that question on the existing record and accordingly reverse and remand for further factual development consistent with this opinion. I. The disputes in this case arise from two federal statutes passed in the 1960’s—FOIA and the Gun Control Act of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213 (1968)—and  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 7 from Congress’s evolving understanding of the circumstances in which ATF should disclose gun-tracing data gathered under the GCA. We therefore recount the history of these statutes, Congress’s recent involvement in this area, and then the case at hand. A. In 1966, Congress enacted FOIA to usher in a newfound era of transparency in the Executive Branch. Milner v. Dep’t of Navy, 562 U.S. 562 , 565 (2011). FOIA mandated that federal agencies “disclose records on request, unless they fall within one of nine exemptions.” Id. “These exemptions are ‘explicitly made exclusive’” and “must be ‘narrowly construed.’” Id. (quoting Envt’l Prot. Agency v. Mink, 410 U.S. 73 , 79 (1973); Fed. Bureau of Investigation v. Abramson, 456 U.S. 615 , 630, (1982)). They thus “do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361 . Over the years, Congress has repeatedly updated and strengthened FOIA. See, e.g., OPEN FOIA Act of 2009, Pub L. No. 111- 83, § 564, 123 Stat. 2142 , 2184 (2009); Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104- 231, 110 Stat. 3048 (1996) (E-FOIA). Meanwhile, a year after passing FOIA, and in the wake of the assassinations of President John F. Kennedy, Attorney General Robert Kennedy, and Martin Luther King Jr., Congress passed the Gun Control Act of 1968. The GCA sought to reduce the incidence of “crime and violence,” § 101, 82 Stat. at 1213, by, among other things, creating a statutory licensing and recordkeeping scheme for firearms manufacturers, importers, retailers, and dealers, see 18 U.S.C. § 923 . The Attorney General or his current designee, ATF, may obtain and inspect the inventory and sales records created under this scheme for certain 8 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ enumerated reasons, including as part of a criminal investigation. Id. § 923(g). ATF has used this statutory authority to implement “tracing”—“the systematic tracking of a recovered firearm from its manufacturer or importer, through its subsequent introduction into the distribution chain (wholesaler/retailer), to identify an unlicensed purchaser.” As explained in the First Declaration of Charles Houser, Chief of the National Tracing Center Division of ATF, any law enforcement agency in the country can request that ATF trace a firearm. Upon such a request, ATF tracks a firearm from its manufacturer or importer, through the supply chain of licensed dealers and wholesalers, and on to the first retail purchaser of that gun. A trace usually, but not always, stops with the first retail purchaser, because those purchasers are not subject to the GCA’s recordkeeping requirements. ATF documents each trace it conducts. These tracing records are maintained in the Firearm Tracing System, an electronic database that logs the “trace data” for each individual trace. As of April 2018, the FTS database contained information from over 6.8 million traces. The FTS database retains substantial information about each individual trace, including: (i) information about the law enforcement agency requesting the trace, such as the agency’s name, address, case number, and investigative notes provided by the agency; (ii) information provided by the requesting agency regarding its recovery of the firearm, such as the date and location where the traced firearm was taken into custody by the requesting agency; (iii) information about purchasers of the traced firearm;  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 9 (iv) information about possessors of the traced firearm and any associates (i.e., persons with the possessor of the firearm when the firearm comes into police custody), such as their names and addresses, driver’s license information and social security numbers, and any related vehicle information; (v) information identifying each [Federal Firearms License] that has sold the traced firearm; and (vi) information about the traced firearm such as the manufacturer, importer, model, weapon type, caliber, and serial number. This information is situated in the FTS database in “over 75 tables with a combined total of 800 columns/fields, not including subsystems and integrated or associated systems.” When it completes a firearms trace, ATF enters a “close- out-code” in the FTS database to signal the status of the completed trace. Firearms traced to a government or law enforcement agency generally receive the close-out code “S5.” Three other codes also reveal that ATF traced a firearm to a law enforcement or government agency: “S6,” “SH,” and “DN.” ATF prepares various reports and statistical analyses using the FTS database, which it shares with the public on its website and with partnered government and law enforcement agencies. ATF prepares these reports through specialized search queries. After receiving the results of the query, it processes, verifies, and organizes that data through statistical software. Often, ATF creates “visual depictions,” such as graphs or charts from the data, and a “multi-level review process” ensues to verify the accuracy of the data and 10 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ format. “[E]xperienced specialists at the ATF” generally complete this process. Because the FTS database contains large volumes of quantitative data regarding guns in the United States, ATF has received FOIA requests for permutations of this data. See, e.g., City of Chi. v. U.S. Dep’t of Treas., Bureau of Alcohol, Tobacco & Firearms, 287 F.3d 628 , 632 (7th Cir. 2002), vacated by 537 U.S. 1229 (2003). And, prior to 2003, those requests were at times successful in obtaining responsive information. See, e.g., id. at 638 . B. That status quo began to shift in 2003, when Congress first attached a provision commonly referred to as the “Tiahrt Rider” or “Tiahrt Amendment” to its Consolidated Appropriations Resolution. See Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, § 644, 117 Stat. 11 , 473–74 (2003) (“2003 Rider”). The 2003 Rider directed that “no funds appropriated” in that Act “or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of 5 U.S.C. § 552 with respect to” firearms tracing records, “except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under 5 U.S.C. § 552 prior to the date of the enactment of this Act.” § 644, 117 Stat. at 473–74. That is, no appropriated funds could be used to make any new types of FOIA disclosures of firearms tracing records. Congress has included some version of the Tiahrt Rider in the subsequent Consolidated Appropriations Acts in 2005,  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 11 2008, 2010, and, most recently, 2012. 1 These Tiahrt Riders have become more restrictive—with each Consolidated Appropriations Act since 2005 providing that, beginning in the current fiscal year “and thereafter, no funds appropriated under this or any other Act with respect to any fiscal year may be used to disclose part or all of the contents of the Firearms Trace System database.” 118 Stat. at 2859; 121 Stat. at 1904; 123 Stat. at 3128; 125 Stat. at 609. Each Tiahrt Rider since 2005 has also qualified this general “use of funds prohibition” with varying limitations and exceptions. The 2005 Rider contained three exceptions to this prohibition. First, it permitted the use of funds to disclose such records to “a Federal, State, or local law enforcement agency or a prosecutor,” but “solely in connection with and for use in a bona fide criminal investigation or prosecution and then only such information as pertains to the geographic jurisdiction of the law enforcement agency requesting the disclosure.” 118 Stat. at 2859. Second, the 2005 Rider permitted the use of trace data in actions commenced by ATF to enforce the GCA or in review of such actions, but it otherwise provided that trace data could not be used, was “immune from legal process,” and could not “be subject to subpoena or other discovery” in any civil action or proceeding. Id. at 2859–60. Third, the 2005 Rider permitted “the disclosure of statistical information concerning total 1 See Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809 , 2859–60 (2004) (2005 Rider); Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844 , 1903– 04 (2007) (2008 Rider); Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034 , 3128–29 (2009) (2010 Rider); Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, 125 Stat. 552 , 609–10 (2011) (2012 Rider). 12 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ production, importation, and exportation by each licensed importer . . . and licensed manufacturer.” Id. at 2860 . The 2008 Rider made six changes that broadened these exceptions. First, it now permitted disclosure to tribal and foreign law enforcement agencies in addition to Federal, State, and local law enforcement agencies or prosecutors. 121 Stat. at 1903–04. Second, it conditioned those disclosures only on their connection to a criminal investigation or prosecution, eliminating the geographic jurisdiction requirement. Id. at 1904. Third, it newly allowed disclosure to “a Federal agency for a national security or intelligence purpose.” Id. Fourth, the 2008 Rider stated that trace data was not only immune from legal process and beyond the reach of subpoena and discovery, but also prohibited from being “used, relied on, or disclosed in any manner” in those proceedings, including through “testimony or other evidence . . . based on the data,” subject to the same exceptions for ATF’s actions enforcing the GCA and in review of such actions. Id. Fifth and sixth, the 2008 Rider retained the exception for statistical information, now deemed Exception (A), but added two additional lettered exceptions. Exception (B) provided for even greater freedoms to share that information with law enforcement agencies, prosecutors, and national security agencies and officials. Meanwhile, Exception (C)—at issue in this case—allowed for “the publication of annual statistical reports on products regulated by the [ATF], including total production, importation, and exportation by each licensed importer (as so defined) and licensed manufacturer (as so defined), or statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.” Id.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 13 The 2010 Rider further altered this scheme in three ways. First, though it retained the exception for disclosure to Federal, State, local, tribal, and foreign law enforcement agencies and Federal, State, or local prosecutors, it limited the requirement that such information be “in connection with or for use in a criminal investigation or prosecution” to sharing information with foreign law enforcement agencies. 123 Stat. at 3128. Second, disclosure to any law enforcement agency or prosecutor was prohibited if it “would compromise the identity of any undercover law enforcement officer or confidential informant, or interfere with any case under investigation.” Id. Third, it prohibited any law enforcement officer, agency, or prosecutor that obtained such data from “knowingly and publicly disclosing the data.” Id. The 2012 Rider is identical to the 2010 Rider, except in the precise language discussing its application for the “current fiscal year and in each fiscal year thereafter.” 125 Stat. at 609. Congress has passed no subsequent Tiahrt Rider, and other than the 2003 Rider, no Rider cites FOIA. C. In preparation for a report on gun violence and the links between crime and guns once owned by law enforcement, CIR submitted the FOIA request at issue here. In March 2017, it requested, in relevant part, that ATF provide the “total number of weapons traced back to former law enforcement ownership, annually from 2006 to the present.” 2 CIR maintains that “access to public records 2 The Chief of the National Tracing Center Division of ATF concedes that this request “concerns law enforcement data from the ATF’s Firearms Trace System database.” 14 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ about the involvement of law enforcement weapons in crime is especially important in a functioning civil society” and that this information “is essential for journalists to study so that they may inform the public and ensure government accountability.” When ATF failed to provide a substantive response to its FOIA request, CIR brought this FOIA action to compel disclosure. The district court found that ATF was not required to disclose the requested information under FOIA and granted summary judgment in favor of the agency. The district court reasoned that the 2005 and 2008 Tiahrt Riders “are still effective prospectively,” were not required to cite FOIA specifically when enacted, and therefore, qualify as withholding statutes under FOIA Exemption 3, 5 U.S.C. § 552 (b)(3). To the extent that CIR requested “statistical aggregate data” that fell outside the Tiahrt Rider’s prohibition, the district court held that ATF could not disclose that information without creating a new record, something FOIA does not require the agency to do. The district court entered partial judgment for the Government, and, after the stipulated dismissal of the other claims, this appeal followed. II. We have jurisdiction under 28 U.S.C. § 1291 . We review a grant of summary judgment in FOIA cases de novo, “employ[ing] the same standard used by the trial court under Federal Rule of Civil Procedure 56(c).” Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 , 988 (9th Cir. 2016) (en banc). We thus “view the evidence in the light most favorable to the nonmoving party, determine whether there are any genuine issues of material fact, and decide whether the district court correctly applied the relevant substantive law.” Id. at 989 .  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 15 III. We consider first whether the Tiahrt Riders render the information CIR seeks exempt from disclosure under FOIA. FOIA Exemption 3 relieves an agency of its obligation to disclose material “specifically exempted from disclosure by statute,” but only if that statute (1) “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld,” and (2) “if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.” 5 U.S.C. § 552 (b)(3). In applying this exemption, we must ask “whether the statute identified by the agency is a statute of exemption within the meaning of Exemption 3.” Hamdan, 797 F.3d at 776 (citing Cent. Intelligence Agency v. Sims, 471 U.S. 159 , 167 (1985)). If so, we assess “whether the withheld records satisfy the criteria of the exemption statute.” Id. (citing Sims, 471 U.S. at 167 ). A. While that inquiry sounds straightforward, we must answer a preliminary question here: which Tiahrt Rider (or Tiahrt Riders) is the asserted “statute of exemption”? After all, Congress passed Tiahrt Riders in five different years, and most of them reflect differing restrictions on ATF’s disclosure of data from the FTS database. Moreover, some of these Riders were passed before the enactment of the OPEN FOIA Act of 2009, while others were enacted after that Act. That timing matters because Riders passed before the OPEN FOIA Act could serve as statutes of exemption without citing to 5 U.S.C. § 552 (b)(3), but those passed afterwards must expressly cite to that subsection to constitute statutes of exemption. Given all this, we must 16 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ determine which Tiahrt Rider or Riders are currently operative law. We conclude that the 2012 Rider—which enacted the language of the 2010 Rider without any alteration—is the only operative Rider because the 2010 Rider impliedly repealed the 2005 and 2008 Riders in full. 3 Having reached that conclusion and upon looking to the 2010 Rider, we conclude that it is not a statute of exemption for the simple reason that, though enacted after the OPEN FOIA Act of 2009, it makes no reference to 5 U.S.C. § 552 (b)(3). 1. While “[r]epeals by implication are not favored,” Radzanower v. Touche Ross & Co., 426 U.S. 148 , 154 3 The parties identify no binding or other appellate case law that answers this question, and the district courts that have directly addressed the implied repeal issue are split. Compare Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 403 F. Supp. 3d 343 , 353 (S.D.N.Y. 2019) (“Congress intended each Rider to comprehensively replace its predecessor.”), appeal docketed, No. 19-3438 (2d Cir. Oct. 21, 2019), with Abdeljabbar v. Bureau of Alcohol, Tobacco & Firearms, 74 F. Supp. 3d 158 , 175 (D.D.C. 2014) (“Congress’s decision to incorporate similar language into appropriations bills after 2009 demonstrates its intent to continue the disclosure prohibition.”). The other district court cases cited by the Government either blindly follow Abdeljabbar or otherwise gloss over the OPEN FOIA Act and the implied repeal issue. See Reep v. U.S. Dep’t of Just., 302 F. Supp. 3d 174 , 183 (D.D.C. 2018); Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 139 F. Supp. 3d 287 , 292 (D.D.C. 2015); Higgins v. U.S. Dep’t of Just., 919 F. Supp. 2d 131 , 145 (D.D.C. 2013); see also P.W. Arms, Inc. v. United States, No. C15-1990- JCC, 2017 WL 319250 , at *4 (W.D. Wash. Jan. 23, 2017). Moreover, in many of these cases, including Abdeljabbar, the plaintiff proceeded pro se. Abdeljabbar, 74 F. Supp. 3d at 164; Reep, 302 F. Supp. 3d at 179; Fowlkes, 139 F. Supp. 3d at 288; Higgins, 919 F. Supp. 2d at 137.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 17 (1976) (quoting United States v. United Cont’l Tuna Corp., 425 U.S. 164 , 168 (1996)), the Supreme Court has recognized “two well-settled categories of repeals by implication[:] (1) where provisions in the two acts are in irreconcilable conflict . . . . ; and (2) [where] the later act covers the whole subject of the earlier one and is clearly intended as a substitute,” id. (quoting Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497 , 503 (1936)); In re Glacier Bay, 944 F.2d 577 , 581 (9th Cir. 1991). “In either case, the intention of the legislature to repeal must be clear and manifest,” Posadas, 296 U.S. at 503 , based usually on “the language or operation of [the] statute,” Kremer v. Chem. Constr. Corp., 456 U.S. 461 , 470 (1982). Otherwise, “the later act is to be construed as a continuation of, and not a substitute for, the first act,” and the later act “will continue to speak, so far as the two acts are the same, from the time of the first enactment.” Posadas, 296 U.S. at 503 . CIR argues that each of the subsequent Riders was a substitute for the prior one. We thus examine whether the 2010 Rider, repeated in the 2012 Rider in full, “cover[s] the whole subject covered by an earlier act, embraces new provisions, and plainly shows that it was intended . . . to prescribe the only rules with respect thereto.” United States v. Lovely, 319 F.2d 673 , 679–80 (4th Cir. 1963) (finding such an implied repeal); accord United States v. Tynen, 78 U.S. 88 , 92 (1870) (same); see also 1A Norman J. Singer & Shambie Singer, Sutherland Statutory Construction § 23:13 (7th ed. 2013) (“Legislation which operates to revise the entire subject to which it relates gives strong implication of a legislative intent to repeal former statutory law and also to supersede the common law relating to the same subject.”). While not necessarily an exhaustive list, this analysis involves examining at least: how Congress described its own actions in the subsequent act, Posadas, 296 U.S. at 502 ; how 18 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ many aspects of the statutory scheme differ and in what depth, id.; and whether the subject matter addressed in both acts is identical in scope, Tynen, 78 U.S. at 92; Lovely, 319 F.2d at 679–80. 2. Applying these principals here, we conclude that Congress impliedly repealed the 2005 and 2008 Tiahrt Riders through its later passage of the 2010 and 2012 Riders. 4 Because the 2008 Rider was the last version passed before the OPEN FOIA Act, which provided that Exemption 3 would apply to only those statutes enacted thereafter that “specifically cited” to it, and the 2010 Rider was the first version passed after the passage of the OPEN FOIA Act, our analysis focuses there. The 2008 Rider provides that: [B]eginning in fiscal year 2008 and thereafter, no funds appropriated under this or any other Act may be used to disclose part or all of the contents of the Firearms Trace System database . . . except to (1) a Federal, State, local, tribal, or foreign law enforcement agency, or a Federal, State, or local prosecutor, solely in connection with 4 We note also that there is no meaningful distinction between the 2012 Rider and the 2010 Rider. The 2012 Rider applies in the “current fiscal year and in each fiscal year thereafter,” a slightly different wording from the concept expressed in the 2010 Rider, “beginning in fiscal year 2010 and thereafter.”  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 19 and for use in a criminal investigation or prosecution; or (2) a Federal agency for a national security or intelligence purpose; and all such data shall be immune from legal process, shall not be subject to subpoena or other discovery, shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State . . . or Federal court or in an administrative proceeding other than a proceeding commenced by the [ATF to enforce the Gun Control Act] . . . or a review of such an action or proceeding . . . . 2008 Rider (emphases added to identify portions affected by the 2010 Rider). In addition, the 2008 Rider includes the three lettered exceptions to the use of funds prohibition, including “that this proviso shall not be construed to prevent . . . (C) the publication of annual statistical reports . . . or statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations.” Id. The 2010 Rider made substantive modifications to the use of funds prohibition, providing that: [B]eginning in fiscal year 2010 and thereafter, no funds appropriated under this or any other Act may be used to disclose part 20 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ or all of the contents of the Firearms Trace System database . . . except to: (1) a Federal, State, local, or tribal law enforcement agency, or a Federal, State, or local prosecutor; or (2) a foreign law enforcement agency solely in connection with or for use in a criminal investigation or prosecution; or (3) a Federal agency for a national security or intelligence purpose; unless such disclosure of such data to any of the entities described in (1), (2) or (3) of this proviso would compromise the identity of any undercover law enforcement officer or confidential informant, or interfere with any case under investigation; and no person or entity described in (1), (2) or (3) shall knowingly and publicly disclose such data; and all such data shall be immune from legal process, shall not be subject to subpoena or other discovery, shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State . . . or Federal court or in an administrative proceeding other than a proceeding commenced by the [ATF to enforce the Gun Control Act] . . . or a review of such an action or proceeding . . . .  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 21 2010 Rider (emphases added to reflect modifications from the 2008 Rider). The 2010 Rider maintained the same three lettered exceptions as the 2008 Rider. We have no doubt that the 2010 Rider “cover[s] the whole subject of the” matters discussed in the 2005 and 2008 Riders. See Lovely, 319 F.2d at 679 . Like those earlier Riders, it lays out a prohibition on the use of appropriated funds to disclose trace data and spells out a series of specific exceptions to that general prohibition. It likewise generally purports to insulate this data from administrative or civil discovery and bars the use of this data in adjudicatory proceedings. Finally, it also lists scenarios where ATF may both turn over certain types of information from the FTS database and use generally appropriated funds for that purpose. Moreover, the 2010 Rider is, like its predecessors, clearly intended to prescribe the only rules for the release of data from the FTS. It presumptively bans the disclosure of all such data, making exceptions only as provided in that 2010 Rider. It does not cross reference other statutes or regulations that discuss the FTS data, and neither we nor the parties have located another federal law outside the Tiahrt Rider that speaks directly to the data contained in the FTS. Congress has also effectively endorsed this view, given that it anticipated the 2010 Rider to apply “beginning in fiscal year 2010 and thereafter.” See also Everytown, 403 F. Supp. 3d at 353 (“The use of express repetition of language of futurity in every [Rider] indicates that Congress understood each Rider to provide specific, ongoing rules for Firearms Trace System database disclosure that did not necessitate examining prior enactments on the subject.”). Furthermore, the 2010 Rider and the two “new provisions” it “embrace[d]” redefined what FTS disclosures 22 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ are even possible. See Lovely, 319 F.2d at 679–80 (noting two operative differences). Consider that the 2010 Rider, in one respect, broadened the scope of the disclosures allowed by the 2008 Rider, because it allowed disclosures to law enforcement without any “connection to a criminal investigation or prosecution.” Yet the 2010 Rider also simultaneously cut back on the previously allowed FTS disclosures because it prohibited disclosures that might compromise the identity of undercover agents or informants. Given these asymmetric changes, a permissible disclosure under the 2008 Rider may or may not be permissible under the 2010 Rider. Or it may still be impermissible, but for a new reason entirely—e.g., a request by law enforcement, unrelated to a criminal investigation or prosecution, may nevertheless pose a risk of revealing an undercover agent’s identity. In short, it makes no sense to look back to the 2005 or 2008 Riders, as the government suggests, because they do not reflect current law. Cf. Gallenstein v. United States, 975 F.2d 286 , 292 (6th Cir. 1992) (“The second category of implied repeal is where the later statute fills the entire area of law such that the prior statute has no effect.”). The above analysis convinces us that Congress intended the 2010 Rider to repeal the previous 2008 Rider. See Tynen, 78 U.S. at 92; Lovely, 319 F.2d at 679–80. Indeed, this case presents a situation far different from Posadas, in which an amendment added only one provision to a much larger and largely independent statutory scheme and in which the Supreme Court concluded that the Federal Reserve Act of 1916 did not impliedly repeal the Federal Reserve Act of 1913, but instead only amended six of the earlier Act’s thirty sections. See Posadas, 296 U.S. at 502 . That this case is quite distinct from Posadas and its progeny is further evidenced by the fact that the 2010 Rider  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 23 does not reference previous Riders or explicitly purport to “amend” previous Riders. 296 U.S. at 502 . Indeed, Congress’s refusal to use the word “amend” in the 2010 Rider is notable, as it used the phrase “is amended” 49 times throughout the entire 2010 Consolidated Appropriations Act. See, e.g., § 326, 123 Stat. at 3106 (“The matter under the heading ‘Community Development Fund,’ . . . is amended by striking ‘: Provided further, That none of the funds provided under this heading may be used by a State or locality as a matching requirement, share, or contribution for any other Federal program.”); § 176, 123 Stat. at 3068 (“Section 51314 of title 46, United States Code, is amended in subsection (b) by inserting at the end ‘Such fees shall be credited to the Maritime Administration’s Operations and Training appropriation, . . . .’”). This language suggests that Congress viewed the 2010 Rider as something other than an “amendment.” See Russello v. United States, 464 U.S. 16 , 23, (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.”). The D.C. district court’s analysis in Abdeljabbar, on which the district court in this case heavily relied, does not persuade us otherwise. That decision does not contemplate the issue of repeal by comprehensive replacement. Rather, the Abdeljabbar court rested its holding that the 2005 and 2008 Riders remained in effect despite the passage of the 2010 and 2012 Riders solely on its conclusion that the statutes were not in “irreconcilable conflict.” Citing United States v. Fausto, 484 U.S. 429 , 453 (1988), for the proposition that “a later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two,” the district court found that at 24 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ the abstract level of “disclosure prohibitions” the 2008 and 2010 Riders were consistent. Abdeljabbar, 74 F. Supp. 3d at 175 (quoting Fausto, 484 U.S. at 453). Its strong disbelief “that Congress intended to repeal by implication a disclosure prohibition, at least with respect to FOIA, by reiterating that very prohibition in” the 2010 Rider is thus unjustified. Id. Depending on the statute under consideration and its context, the recitation of a previous prohibition with modifications can be evidence of either a mere amendment or of a decision to repeal and replace. Compare Posadas, 296 U.S. at 505 (describing this as a “well-approved form” of “amendment”) with Singer & Singer, supra, § 23.13 (noting that even comprehensive legislative overhauls may “restate, or at least [] include, some provisions of a former law”). Moreover, Abdeljabbar’s inference that Congress meant to confirm “the plethora of decisions . . . holding that the appropriations language in question” satisfies Exemption 3 by its “uninterrupted use of [the general prohibition] in appropriations bills after 2009,” Abdeljabbar, 74 F. Supp. 3d at 175, is flawed. First, just seven weeks before passing the 2010 Rider, Congress enacted the OPEN FOIA Act. The OPEN FOIA Act was a direct response to “exemption creep,” whereby “an alarming number of FOIA (b)(3) exemptions” were snuck into legislation “to the detriment of the American public’s right to know.” 155 Cong. Rec. S3175 (daily ed. Mar. 17, 2009) (statement of Sen. Leahy). To address this problem, the OPEN FOIA Act directed courts and agencies to consider future legislation as exempting documents from disclosure only if Congress “cites to [ 5 U.S.C. § 552 (b)(3)].” 5 U.S.C. § 552 (b)(3)(B). This measure guaranteed “an open and deliberative process in Congress” before any future statute exempted documents from disclosure under FOIA  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 25 and promised “to reinvigorate and strengthen FOIA.” 155 Cong. Rec. S3175 (daily ed. Mar. 17, 2009) (statement of Sen. Leahy). If anything, the enactment of the OPEN FOIA Act represented a clear break from Congress’s past habit of creating statutes of exemption in a legislative dead of night. That the 2010 Rider may have sufficed to exempt FTS data from disclosure before the Open FOIA Act is thus irrelevant. “[I]nsofar as Congress wished to enact statutes that would exempt Firearms Trace Database data from disclosure following the enactment of the OPEN FOIA Act, it gave itself explicit instructions for how to do so.” Everytown, 403 F. Supp. 3d at 354; see, e.g., Nat’l Def. Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat 1298, 1600–01, 1604 (2011) (demonstrating Congress’s compliance with the OPEN FOIA Act). 5 5 We note also that whether the 2005 and 2008 Riders qualified as withholding statutes was by no means settled when the OPEN FOIA Act was enacted in 2009. Other than a handful of district court decisions, it appears that only the Seventh Circuit had held that those earlier Riders qualified as withholding statutes. See City of Chi. v. U.S. Dep’t of Treas., Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777 , 780 (7th Cir. 2005); Cornish F. Hitchcock, Guidebook to the Freedom of Information and Privacy Acts § 8:9 (2020 ed.) (collecting cases). The parties do not cite, and we have not found, any additional precedent on this issue. Moreover, arguably the 2005 and 2008 Riders are not in fact withholding statutes. We have held that “only explicit nondisclosure statutes . . . will be sufficient to qualify under . . . [E]xemption [3],” whether or not the statute was enacted prior to the OPEN FOIA Act. Cal- Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105 , 108 (9th Cir. 1992) (quoting Church of Scientology v. U.S. Postal Serv., 633 F.2d 1327 , 1329 (9th Cir. 1980)). The 2005 and 2008 Riders do not explicitly prohibit the disclosure of trace data itself. They merely prohibit the use of funds to make disclosures and make this data “immune from legal process.” 26 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ In sum, the 2010 Rider impliedly repealed the 2005 and 2008 Riders. The 2012 Rider simply reenacted the 2010 Rider. Neither qualifies as a withholding statute because they were both enacted after the effective date of the OPEN FOIA Act and do not cite to 5 U.S.C. § 552 (b)(3). Therefore, the documents requested by CIR are not exempted from disclosure under FOIA, 5 U.S.C § 552(b)(3). 6 At best, one might have argued before the OPEN FOIA Act that this “achieve[d] an Exemption 3 effect in an indirect fashion,” Hitchcock, supra, § 8.9, but it was by no means an explicit prohibition on disclosure itself. But “if Congress intended to prohibit the release of [information] under FOIA—as opposed to the expenditure of funds in releasing the [information]—it could easily have said so.” Cal-Almond, 960 F.2d at 108 . In fact, Congress did say so elsewhere in the 2008 Consolidated Appropriations Act. See Br. for Jack Jordan as Amicus Curiae in Supp. of Appellant and Reversal at 24. The 2008 Act stated, “[n]otwithstanding section 552 of title 5, United States Code, . . . the Secretary may not disclose to any person any information obtained” under 6 U.S.C. § 488a, which concerned the maintaining of records of the sale or transfer of ammonium nitrate, Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 899B, 121 Stat. 2084 –85 (2007) (quoting 6 U.S.C. § 488a(h)). Thus, Abdeljabbar’s reasoning that Congress intended to confirm a “long-standing” interpretation of the Tiahrt Rider as a withholding statute is unpersuasive. See 74 F. Supp. 3d at 176–77. 6 We acknowledge that, in a prior unpublished memorandum disposition of our court, we held that “ATF correctly relied on the Appropriations Act of 2010 as a withholding statute explicitly barring disclosure [of trace data] under FOIA Exemption 3.” Caruso v. U.S. Bureau of Alcohol, Tobacco & Firearms, 495 F. App’x 776, 778 (9th Cir. 2012). Unpublished dispositions are not precedential, however. Nor is Caruso of any persuasive value, as the panel failed to address the doctrine of implied repeal or the impact of the OPEN FOIA Act, possibly  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 27 B. The dissent does not object to our discussion regarding the implicit repeal of previous Tiahrt Riders. Instead, it criticizes the OPEN FOIA Act’s prospective definition of statutes of exemption as those that cite to 5 U.S.C. § 552 (b)(3) as an impermissible legislative entrenchment on a later Congress’s ability to create statutes of exemption. For our part, we have found no federal precedent addressing this weighty issue, and the dissent cites none. We thus view this question as one of first impression. 7 But this is not the case to address that question, for the issue is clearly waived. Neither party raised this point before the district court, see Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878 , 882 (9th Cir. 2003), and no party or amici discussed this issue in briefing this appeal, see United States v. McEnry, 659 F.3d 893 , 902 (9th Cir. 2011). Indeed, the parties did not “frame[] this case as [] whether the Tiahrt Amendment or the OPEN FOIA Act governs.” Dissenting Op. at 51. They have instead asked us to resolve whether the 2005 and 2008 Tiahrt Riders remain in effect, even after the enactment of the 2010 and 2012 Tiahrt Riders. See, e.g., Br. of Appellee at 19 (arguing and quoting because the parties there failed to raise these issues below. See Caruso v. U.S. Bureau of Alcohol, Tobacco, & Firearms, No. Civ. 10-6026-HO, 2011 WL 669132 , at *3 n.1 (D. Or. Feb. 16, 2011). 7 We note that, because the 2010 and 2012 Tiahrt Riders do not explicitly purport to repeal the OPEN FOIA Act, this issue at least implicates the following: (1) whether there exists an “irreconcilable conflict” between the Rider and the OPEN FOIA Act, see, e.g., In re Glacier Bay, 944 F.2d 577 , and (2) the Supreme Court’s “especially strong” aversion to implied repeals of standalone laws through appropriation riders. Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 , 1323 (2020) (internal quotation marks and citation omitted). 28 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ Abdeljabbar to assert there is no need to address the OPEN FOIA Act’s effect, because the 2005 and 2008 Riders “provide[] a permanent prohibition against disclosure”); Reply Brief of Appellant at 4 (noting correctly that the government did not “provide any statutory argument regarding” the application of the OPEN FOIA Act and instead relied on Abdeljabbar’s reasoning). Indeed, the first—and only—mention of legislative entrenchment came at oral argument, when our dissenting colleague asked the parties about this principle. The government admitted it had not made this argument and that it chose to focus on whether the 2010 and 2012 Tiahrt Riders implicitly repealed prior Tiahrt Riders. Recording of March 6, 2020 Oral Argument at 17:35–18:00. 8 And even after oral argument, the government has not sought to explore this issue through further briefing. CIR, meanwhile, has never offered any briefing on this issue, as it reasonably understood the government had not pursued this argument. The dissent is, of course, correct that “we have discretion to affirm on any ground supported by the law.” Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649 , 1654 (2018). But “in this case we think restraint is the best use of discretion,” id., as we lack the benefit of analysis from the concerned parties and the district court on this weighty issue of first impression. That course seems doubly wise because, based on oral argument, it appears that the government knew of this potential argument, but may have deliberately chosen not to raise it. See generally United States v. Sineneng- Smith, 140 S. Ct. 1575 , 1579 (2020) (“As a general rule, our system ‘is designed around the premise that parties represented by competent counsel know what is best for 8 https://tinyurl.com/y5orpf3l (last visited Nov. 25, 2020)  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 29 them, and are responsible for advancing the facts and argument entitling them to relief.’” (quoting Castro v. United States, 540 U.S. 375 , 386 (2003) (Scalia, J., concurring in part and concurring in judgment))). IV. Although neither the 2010 nor 2012 Tiahrt Riders exempts the records CIR seeks, they nevertheless generally preclude the expenditure of funds to disclose any of the FTS database’s contents. 9 However, the Riders contain three exceptions to the stated funding prohibitions, and CIR contends that one of those exceptions applies. Specifically, it maintains that its request for “the total number of weapons traced back to former law enforcement ownership, annually from 2006 to the present” fits within Exception (C) of the Tiahrt Rider, which has been included in each Tiahrt Rider since 2008. Exception (C) provides that the Tiahrt Rider: shall not be construed to prevent: . . . (C) the publication of annual statistical reports on products regulated by the [ATF], including total production, importation, and exportation by each licensed importer (as so defined) and licensed manufacturer (as so defined), or statistical aggregate data regarding firearms traffickers and trafficking channels, or firearms misuse, felons, and trafficking investigations. 9 In other words, under FOIA, the agency has a legal obligation to disclose the materials that CIR seeks, but it cannot fulfill that obligation using congressionally appropriated funds. See, e.g., Me. Cmty. Health Options, 140 S. Ct. at 1324. 30 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 123 Stat. at 3129. We agree that this exception applies in this case. CIR’s request seeks statistical aggregate data. “Statistical” is defined as “of, relating to, based on, or employing the principles of statistics.” Merriam-Webster Online Dictionary. 10 “Statistics” in turn is defined as “a branch of mathematics dealing with the collection, analysis, interpretation, and presentation of masses of numerical data.” Id. 11 “Aggregate” refers to a summary form of information “formed by the collection of units or particles into a body, mass, or amount.” Id. 12 Given these definitions, ATF concedes that the number of firearms traced to each state annually, the numbers of each type of firearm recovered annually, and the top source states for firearms, are each examples of “statistical aggregate data” within the meaning of Exception (C). Similarly then, “[t]he total number of weapons traced back to former law enforcement ownership, annually from 2006 to the present” likewise reflects an aggregated statistic derived from an underlying set of data. Moreover, ATF’s production of these documents to CIR will result in the “publication” of this data. Because the Tiahrt Rider does not define that term, we begin with that word’s plain meaning. The plain meaning of “publication” signifies “disclosure to the public, rather than the disclosure of information to another individual or corporation within the context of a business or professional relationship.” Integrated Genomics, Inc. v. Gerngross, 636 F.3d 853 , 861 10 https://tinyurl.com/y2ydrvak (last visited Nov. 25, 2020) 11 https://tinyurl.com/yxgbvuny (last visited Nov. 25, 2020) 12 https://tinyurl.com/y4b4zfc8 (last visited Nov. 25, 2020)  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 31 (7th Cir. 2011) (collecting dictionary definitions); see also Oxford English Dictionary Online (“The action of making something publicly known.”). 13 In the legal context, the phrase generally suggests “the act of declaring or announcing to the public,” Black’s Law Dictionary (11th ed. 2019), or “[n]otification or communication to a third party or to a limited number of people regarded as representative of the public,” Oxford English Dictionary Online. Turning over data regarding firearms in the United States to “a reporter” or “a representative of the news-media” like CIR, which reports on the topic of guns in the United States, will make that data “generally known” to the public. Indeed, the record reveals that the requested data will play a role in CIR’s upcoming “project” on gun violence. That ATF’s compliance with its FOIA obligation will thus result in the publication of the data CIR seeks is not surprising: news media organizations are precisely the sort of “representative[s] of the public” through which individuals and entities commonly distribute information to the public. Cf. Courthouse News Serv. v. Planet, 750 F.3d 776 , 786 (9th Cir. 2014) (“We have observed that the news media, when asserting the right of access, are surrogates for the public.” (internal quotation marks and citation omitted)). Given that complying with its legal obligation under FOIA will make generally known the statistical aggregate data that CIR seeks here, the Tiahrt Rider authorizes ATF’s expenditure of funds to complete this request. 14 13 https://tinyurl.com/yxhe3p85 (last visited Nov. 25, 2020) 14 We do not share the dissent’s slippery-slope concerns about defining “who counts as a ‘representative of the news-media.’” Dissenting Op. at 55 n.8. After all, courts must already grapple with this 32 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ The government and dissent object, maintaining that “publication” refers only to the formalized distribution of prepared, formal information—though they reach that conclusion for different reasons. We turn first to the dissent, which notes that Congress used both the words “disclosure” and “publication” in the 2012 Rider and fears that our definition of publication subsumes the word “disclosure.” “Disclosure” suggests “revealing new or secret information” or “the action of making something openly known.” Oxford English Dictionary Online 15; see also Black’s Law Dictionary (11th ed. 2019) (defining “disclosure” as “[t]he act or process of making known something that was previously unknown; a revelation of facts”). Thus, unlike publication, “disclosure” does not necessarily connote revealing information to the public at large. An agency can disclose information to a limited number of people or under conditions such that information is unlikely to spread amongst the public. Of course, some disclosures may also effectively constitute publication. For example, if ATF discloses information to the entire public, whether in printed form or not, that information becomes generally known. Similarly, if ATF turns over information to a “representative of the public,” such as a reporter, it in effect makes that information generally known to the public. But such an equivalence is by no means a sure thing. If ATF sought to provide records to a limited number of people, who did not fairly represent issue in the FOIA context. See 5 U.S.C. § 552 (a)(4)(A)(ii); Cause of Action v. Fed. Trade Comm’n, 799 F.3d 1108 , 1118–1125 (D.C. Cir. 2015). 15 https://tinyurl.com/y2wmpacy (last visited Nov. 25, 2020)  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 33 the public, the Tiahrt Rider’s “publication” exception would not permit the use of congressionally appropriated funds. In this way, both “disclosure” and “publication” retain contextually distinct meanings in the Tiahrt Rider. As relevant here, the Rider first forbids the use of funds for “disclos[ing] part or all of the contents of the [FTS],” 125 Stat. at 609 (emphasis added), meaning that ATF cannot turn this material over to even a single person. Later, the Rider explains that this funding bar does not apply to “(A) the disclosure of statistical information concerning” the production, exportation, or importation of guns. Id. at 610 (emphasis added). In other words, ATF may use appropriated funds to reveal this information to whomever and however many people it likes, and appropriated funds are available regardless of how ATF exercises that discretion. Finally, the Rider permits the use of appropriated funds for “the publication of” certain “annual statistical reports . . . or statistical aggregate data.” Id. (emphasis added). ATF can thus use these funds to release these materials only if doing so would make these reports or data generally known to the public. 16 The plain meanings of these words also comport with FOIA’s use of those terms. FOIA does not explicitly define the terms “disclosure” or “publication.” See 5 U.S.C. § 551 . But its use of the term “disclosure” clearly covers some situations where it envisions the wide dissemination of information to the public, see, e.g., id. § 552(a)(4)(A)(iii) 16 None of this means that ATF, specifically, is “publish[ing] information.” Dissenting Op. at 55. For though the Tiahrt Rider permits the use of funds to enable “publication” it never states that such “publication” must come at the direct hand of ATF. 125 Stat. at 610. The statute is agnostic in this regard. 34 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ (asking whether “disclosure” will “contribute significantly to public understanding”), and some situations when it does not, see, e.g., id. § 552(a)(8)(A)(i)(I). “Publication,” meanwhile, is always used in a manner that suggests widespread dissemination. See id. § 552(a)(2)(E); 552(a)(4)(A)(ii). Tellingly, FOIA also uses the term “publication” to connote more than “the act or process of publishing printed matter or an issue of printed material offered for distribution or sale.” Dissenting Op. at 53; compare 5 U.S.C. § 552 (a)(2)(E) (discussing “publication” in the Federal Register) with id. § 552(a)(4)(A)(ii) (explaining “[a] freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity,” and that such entities include “television or radio stations broadcasting to the public at large” (emphasis added)). 17 These understandings of “disclosure” and “publication” thus accord with both the Tiahrt Rider’s context and FOIA’s use of those words. Meanwhile, reading the word “publication” to reference only the “formalized, prepared release of information” because the Tiahrt Rider contemplates the “publication” of “reports,” Dissenting Op. at 53–54, is itself a misadventure in contextual analysis. Such a reading ignores that the Tiahrt Rider also permits publication of “statistical aggregate data.” 17 Though we therefore conclude that the use of the terms “disclosure” and “publication” in FOIA correspond with the meanings we discussed earlier, we view that fact as confirmatory, not determinative. The 2012 Rider is, after all, not a part of FOIA’s organic statute. And while it affects the funding available to ATF to comply with its FOIA obligations, it also speaks both to ATF’s funding for “disclosing” FTS data to law enforcement agencies and those entities’ abilities to disclose this information. See 125 Stat. at 609–10. It thus addresses a broader array of issues than FOIA.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 35 125 Stat. at 610. The word “data” does not carry an inference of formal dissemination. See Oxford English Dictionary (defining “data” as “information considered collectively, typically obtained by scientific work used for reference, analysis, or calculation”). 18 So even if the word “reports” standing alone could support reading “publication” in the way the dissent suggests, the full context of the Tiahrt Rider simply doesn’t lend itself to the dissent’s preferred meaning of “publication.” See S.D. Warren Co. v. Me. Bd. of Envt’l Prot., 547 U.S. 370 , 379–80 (2006) (explaining that the contextual canon of “noscitur a sociis is no help absent some sort of gathering [of words] with a common feature to extrapolate”). The government’s reading of the legislative history commits the same error. It notes that in discussing Exemption C, Congress stated: [t]he Committee is concerned that the previous year’s language has been interpreted to prevent publication of a long-running series of statistical reports on products regulated by ATF. This was never the intention of the Committee, and the fiscal year 2008 language makes clear that those reports may continue to be published in their usual form as they pose none of the concerns associated with law enforcement sensitive information. H.R. Rep. No. 110-240, at 63 (2007). But again, while this statement provides context for understanding Congress’s intention as to “statistical reports,” it casts no light on 18 https://tinyurl.com/yy7qdgjm (last visited Nov. 25, 2020) 36 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ Congress’s intention with regard to the release of “aggregate data.” 125 Stat. at 610. And the meaning of “publication” must account for both of the items that Congress listed in Exemption C. ATF itself appears to have recognized in past cases that Exemption C’s use of the term “publication” encompasses more than formal statistical reports. For example, it has used appropriated funds to release aggregate trace data during litigation. See, e.g., Def.’s Br. in Opp’n to Pls.’ Mot. to Suppl. the Administrative Record at 5 n.2, Ron Peterson Firearms, LLC v. Jones, Civil No. 11-CV-678 JC/LFG, 2013 WL 12091518 (D.N.M. Mar. 27, 2013). After all, aggregate data does not “jeopardiz[e] criminal investigations and officer safety” or impinge upon “the privacy of innocent citizens.” H.R. Rep. No. 107-575, at 20 (2002); cf. H.R. Rep. No. 110-240, at 63 (noting that the disclosure of statistical reports “pose[s] none of the concerns associated with law enforcement sensitive information”). 19 V. According to ATF, the court nevertheless cannot compel disclosure for a separate reason: ATF is not required to disclose under FOIA the “[t]otal number of weapons traced 19 If Exemption C did not apply, there could still be other ways to address this funding issue besides the use of congressionally appropriated funds. To begin, the record does not reveal the extent to which fulfilling CIR’s request would require the use of government funds. Moreover, we note that FOIA provides for the charging of fees “applicable to the processing of requests,” but those fees are limited to “reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative for the news media.” 5 U.S.C. § 552 (a)(4)(A). Finally, in some cases the requesting party has offered to pay for the disclosure of the requested records. See, e.g., Cal-Almond, 960 F.2d at 108 .  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 37 back to former law enforcement ownership, annually from 2006 to the present,” because FOIA establishes a right of access to existing agency records only, and searching its trace database would require the creation of a new record. As CIR and amici recognize, whether a search query of an existing database entails the creation of a “new record” is a question of great importance in the digital age. “[D]atabase journalism is now fundamental to modern newsrooms,” and “exactly how journalists can request and use information from [government] databases . . . has the potential to make or break efforts to hold the government accountable using its own data.” Br. of Amici Curiae Five Media Organizations & Sixteen Data Journalists in Supp. of Appellant & Reversal (Media Orgs. Br.) at 10. Amici also explain that the number of government databases is ever expanding, as agencies continue to collect massive amounts of data about American society, which they store in electronic databases. Br. of Amicus Curiae Elec. Frontier Found. in Supp. of Pl.-Appellant at 1–3. Moreover, as in this case, “[r]eleasing statistical aggregate data from government databases” may sometimes prove the “only[] way to comply with FOIA’s mandate while properly balancing the public’s and the government’s interests in safeguarding sensitive information.” Id. at 2. Thus, if running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA, a result plainly contrary to Congress’s purpose in enacting FOIA. A. FOIA establishes a right of access to existing agency records only. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132 , 161–62 (1975). Although FOIA requires federal agencies to make “reasonable efforts to search for” the 38 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ records requested, 5 U.S.C. § 552 (a)(3)(C), it does not require agencies to create new records, Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136 , 151–52 (1980); see also Inst. for Just. v. Internal Revenue Serv., 941 F.3d 567 , 569 (D.C. Cir. 2019) (“FOIA imposes no duty on agencies to create new records in response to FOIA requests.”); Yagman v. Pompeo, 868 F.3d 1075 , 1080–81 (9th Cir. 2017) (explaining that an agency is under no duty to simply answer questions under FOIA). However, “the burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not [currently existing] agency records.” U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136 , 142 n.3 (1989) (internal quotation marks omitted). Against this backdrop, in 1996, Congress enacted the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) to update FOIA. Congress recognized that “FOIA face[d] a new challenge” as the federal government began storing and analyzing massive amounts of information on electronic networks and in electronic databases. See H.R. Rep. No. 104-795, at 11 (1996). So that “FOIA [may] stay abreast of these developments,” id. at 12, Congress amended the term “record” to include “any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format,” 5 U.S.C. § 552 (f)(2). Thus, “computer database records are agency records subject to the FOIA.” H.R. Rep. No. 104-795, at 19 (1996); accord Inst. for Just., 941 F.3d at 571. And recognizing the malleability of digital data, E-FOIA also required that the agency “provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” § 5, 110 Stat. at 3050.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 39 E-FOIA also amended the definition of “search” to mean “to review, manually or by automated means.” Id. Congress acknowledged that “[c]omputer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information,” but emphasized that “the review of computerized records would not amount to the creation of records.” H.R. Rep. No. 104–795, at 22 (1996). Thus, E-FOIA codified a principle already established by the courts of appeal: “Although accessing information from computers may involve a somewhat different process than locating and retrieving manually-stored records, these differences may not be used to circumvent the full disclosure policies of the FOIA.” Inst. for Just., 941 F.3d at 571 (quoting Yeager v. Drug Enf’t Admin., 678 F.2d 315 , 321 (D.C. Cir. 1982)). Applying E-FOIA, courts have consistently held that database searches do not involve the creation of new records. See id. at 569. Moreover, district courts have held that sorting, extracting, and compiling pre-existing information from a database does not amount to the creation of a new record. See Long v. Immigr. & Customs Enf’t, No. 17-cv- 01097 (APM), 2018 WL 4680278 , at *4 (D.D.C. Sept. 28, 2018) (“[N]either sorting a pre-existing database of information to make information intelligible, nor extracting and compiling data . . . as to any discrete pieces of information that [an] agency does possess in its databases, amounts to the creation of a new agency record.” (internal quotation marks omitted)); Nat’l Sec. Couns. v. Cent. Intelligence Agency, 898 F. Supp. 2d 233 , 270 (D.D.C. 2012) (Nat’l Sec. Couns. I) (“[S]orting a pre-existing database of information to make information intelligible does not involve the creation of a new record.”); Schladetsch v. Dep’t of Hous. & Urb. Dev., 2000 WL 33372125 , at *3 (D.D.C. Apr. 4, 2000) (“Because HUD has conceded that it possesses 40 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ in its databases the discrete pieces of information which [plaintiff] seeks, extracting and compiling that data does not amount to the creation of a new record.”). We agree that using a query to search for and extract a particular arrangement or subset of data already maintained in an agency’s database does not amount to the creation of a new record. 20 In some ways, typing a query into a database is the modern day equivalent of physically searching through and locating data within documents in a filing cabinet. The subset of data selected is akin to a stack of redacted paper records. It makes no difference if the query produces a set of documents, a list, a spreadsheet, or some other form of results that the agency has not previously viewed. For one thing, “[a] request is not flawed simply because the agency has not anticipated it and preassembled the desired information.” Ferri v. Bell, 645 F.2d 1213 , 1220 n.9 (3d Cir. 1981). Further, “[t]he fact that [the agency] may have to search numerous records to comply with the request and that the net result of complying with the request will be a document the agency did not previously possess is not unusual in FOIA cases nor does this preclude the applicability of the Act.” Disabled Off.’s Ass’n v. Rumsfeld, 428 F. Supp. 454 , 456 (D.D.C. 1977), aff’d, 574 F.2d 636 (D.C. Cir. 1978); Schladetsch, 2000 WL 33372125 , at *3 (applying this principal to electronic databases). So long as the relevant information and data fields already exist in the 20 We use the term “query” as defined by amici Five Media Organizations and Sixteen Data Journalists: “A query is an instruction that tells a database management system to select a specific subset of information from a database and return it in a particular arrangement.” Media Orgs. Br. at 15.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 41 database maintained by the agency, the result produced by a query is an existing record, regardless of the form it takes. 21 The nature of electronic databases firmly grounds this principal in common sense. Unlike paper documents, which present information in a largely fixed form, “databases store information in a highly structured format that is easily divided and recombined into a variety of arrangements.” Media Orgs. Br. at 24; see also id. at 12–13. Thus, as amici argue, an agency that stores information in a database creates “a multitude of different arrangements [of the data] . . . , each of which is in the agency’s possession or control.” Id. at 22 (internal quotation marks omitted). The agency has access to these different arrangements of data, and under E- FOIA, the public presumably has the same rights of access. Were we to agree with ATF that the results of a search query run across a database necessarily constituted the creation of a new record, we may well render FOIA a nullity in the digital age. The federal government has increasingly recognized the importance of aggregate data, and, as amici again point out, uses this information in significant ways, implicating profound issues of public importance. 21 We reject the bright-line distinction some courts have made between producing “particular points of data” and producing a “listing or index” of a database. Nat’l Sec. Couns. I, 898 F. Supp. 2d at 271. It cannot be that some arrangements of data available through a query of a database are “records” created and obtained by an agency, while others are not. See Nat’l Sec. Couns. v. Cent. Intelligence Agency, 960 F. Supp. 2d 101 , 160 n.28 (D.D.C. 2013) (Nat’l Sec. Couns. II) (calling the content-index distinction “legal hair-splitting” and “fraught with tension”). 42 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ B. ATF insists that CIR did not request trace records themselves, but statistical information about those records that does not already exist in the FTS database. The district court agreed, reasoning that ATF had not yet prepared and published a formal, annualized report on the number of firearms traced back to former law enforcement ownership. The absence of an annual statistical report does not end the inquiry, however, because CIR’s request does not ask for nor necessarily require the production of such a formal report. 22 CIR argues that ATF can obtain the information requested with a simple query using preexisting close-out codes to sort the FTS database. ATF concedes that the FTS database “includes close-out codes for each trace, including those related to law enforcement and government agencies” and that it could search the FTS database to identify the trace records involving traces back to former law enforcement ownership. Yet ATF admits it has not conducted a search of the FTS database in response to CIR’s request for statistical aggregate data. ATF can theoretically respond to CIR’s request in at least two ways. First, it could search the FTS database for records tagged with the relevant close-out codes and produce the resulting traces or list of traces, with any necessary redactions, for CIR to tabulate. Although the 2012 Tiahrt Rider prohibits ATF from using appropriated funds to do so, the Rider is not a withholding statute for purposes of FOIA, 22 We reject ATF’s argument that complying with disclosure would require it to engage in a further review process after running a search. The fact that ATF voluntarily engages in a multi-step review process when preparing and publishing its own statistical reports does not require it to do the same in response to an otherwise proper FOIA request.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 43 and ATF does not contend that any of FOIA’s other limited exemptions apply. Second, ATF could produce the precise statistical aggregate data that CIR seeks, with no further counting or analysis required, if, for example, a query or queries for the relevant close-out codes produces a “hit count” reflecting the number of records involving a firearm traced to law enforcement, the number of matching records is contained in FTS metadata, or if the database produces an otherwise responsive result separate from the trace data itself. Because the Tiahrt Rider permits the disclosure of such statistical aggregate data, this second option would avoid any unauthorized use of funds. Without a further understanding of the specifics of the FTS database, however, these are only theoretical possibilities. We have an insufficiently developed record from which to determine with any certainty whether the information CIR seeks could be produced by a reasonable search of the FTS database or would require more significant human analysis. The record evidence only generally describes the FTS database and does not describe its search functions or the form that the results of a query or search of the database will take. As a result, CIR can only speculate based on data that ATF produced in other proceedings that “the FTS database already appears to contain the responsive count” or that it otherwise contains responsive data. Likewise, amici can only surmise “to the best of its knowledge” that the FTS database “is built in Oracle, a relational database management system” and that it can analyze its capabilities based on “a typical relational database,” not evidence specific to how the FTS database itself is organized and functions. Media Orgs. Br. at 13–14. Because ATF bears the burden of justifying that records were properly withheld, Tax Analysts, 492 U.S. at 142 n.3, we remand to the district court to provide ATF the 44 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ opportunity to better explain the nature of the FTS database, and determine whether CIR’s search query will yield the responsive information it seeks. VI. For the reasons stated herein, we REVERSE the district court’s grant of summary judgment and REMAND for further proceedings. 23 BUMATAY, Circuit Judge, dissenting: The Constitution provides that once legislation is approved by both houses of Congress and signed by the President, it becomes law. With today’s decision, the majority approves another requirement: that an act must also conform to “magical passwords” dictated by previous congresses. The majority also misconstrues federal law as requiring FOIA disclosures that Congress has expressly prohibited. For these reasons, I respectfully dissent. I. Against the weight of precedent, the majority holds that the Tiahrt Amendment of 2012 must conform to an earlier statute—the OPEN FOIA Act of 2009—to be effective. As I explain below, this offends our constitutional scheme. 23 CIR’s motion for judicial notice is DENIED AS MOOT. Likewise, amicus Jack Jordan’s three motions for miscellaneous relief are DENIED AS MOOT.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 45 A. For a bill to become law, the Constitution’s sole requirements are bicameralism and presentment. See U.S. Const. art. I, § 7, cl. 2; see also I.N.S. v. Chadha, 462 U.S. 919 , 951 (1983) (“It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7 represents the Framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”). The Constitution imposes no requirement that new statutes must comply with past statutes. In other words, when passing laws, Congress is not bound by previous congresses. Chief Justice Marshall articulated this early on: “one legislature cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 10 U.S. 87 , 135 (1810); see also United States v. Winstar Corp., 518 U.S. 839 , 873 (1996) (“[W]e have recognized that a general law . . . may be repealed, amended or disregarded by the legislature which enacted it, and is not binding upon any subsequent legislature[.]”) (simplified). Congressional enactments that attempt to bind subsequent congressional action are known as entrenchments. See John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 Cal. L. Rev. 1773 , 1777–78 (2003). Such legislative entrenchments cannot bind future congresses. As long as we are dealing with “general law enacted by the legislature”—and not “a constitutional provision”—the law “may be repealed, amended, or disregarded by the legislature which enacted it.” Manigault v. Springs, 199 U.S. 473 , 487 (1905). The prohibition on legislative entrenchment has ancient roots and stems from the fundamental nature of legislative power itself. See, e.g., 1 W. Blackstone, Commentaries on 46 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ the Laws of England 90 (1765) (“Acts of parliament derogatory from the power of subsequent parliaments bind not.”). As a result, members of the founding generation took the revocability of ordinary (non-constitutional) legislation as self-evident. The Virginia Statute for Religious Freedom of 1779—introduced by Madison and drafted by Jefferson— stated that “we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, ha[s] no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law.” A Bill for Establishing Religious Freedom, 18 June 1779; 1 see also John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 Va. L. Rev. 385 , 405 (2003) (Evidence of Madison’s public embrace of the “antientrenchment principle” “strongly suggests . . . [it] was widely accepted among the Framers’ generation.”). 2 Entrenchment also runs counter to the principles of our representative democracy. “Frequent elections are unquestionably the only policy by which” the legislature’s accountability to the People can be achieved. The Federalist No. 52, at 251 (James Madison) (David Wootton ed., 2003). 1 https://founders.archives.gov/documents/Jefferson/01-02-02-0132- 0004-0082 2 Some commentators suggest that entrenchment is also in tension with Article I’s Rulemaking Clause, which says that “[e]ach House may determine the Rules of its Proceedings.” U.S. Const. art. I, § 5, cl. 2. They argue that this clause, properly understood, represents a “powerful constitutional principle that effectively walls off the entire process of enacting legislation from outside scrutiny or control”—including the control of former congresses. Roberts & Chemerinsky, supra, at 1789– 95.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 47 Accordingly, each “election furnishes the electorate with an opportunity to provide new direction for its representatives.” Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 Am. B. Found. Res. J. 379 , 404–05. Yet, this “process would be reduced to an exercise in futility were the newly elected representatives bound by the policy choice of a prior generation of voters.” Id. Express-statement laws are no exception to this rule. See Marcello v. Bonds, 349 U.S. 302 , 310 (1955); Dorsey v. United States, 567 U.S. 260 , 274 (2012). Express-statement laws are a form of entrenchment: they require a later enacted law to expressly reference a prior law if it is to actually supersede that law. But express-statement laws cannot impose some sort of “recitation requirement” on future congresses. As Justice Scalia observed, “[w]hen the plain import of a later statute directly conflicts with an earlier statute, the later enactment governs, regardless of its compliance with any earlier-enacted requirement of an express reference or other ‘magical password.’” Lockhart v. United States, 546 U.S. 142 , 149 (2005) (Scalia, J., concurring). In Marcello, the Court held that the Administrative Procedure Act’s hearing provisions did not apply to deportation proceedings, notwithstanding the immigration statute’s failure to include an express statement of exemption as required by the APA. 349 U.S. at 310 . The Court reasoned that “[u]nless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.” Id. 48 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ Similarly, in Dorsey, the Court found that a more recently enacted sentencing law impliedly repealed an earlier one, despite the later statute’s failure to comply with the express-statement requirement in the prior statute. 567 U.S. at 273–74. The Court concluded that “statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified.” Id. at 274 . For the Court, the express-statement requirement was merely a “background principle of interpretation,” not a binding rule. Id. Altogether, the weight of constitutional history and precedent show that where two statutes conflict, the later statute controls, regardless of attempts by past congresses to hobble the current legislature. As Hamilton stated, as “between the interfering acts of an equal authority, that which was the last indication of its will should have the preference.” The Federalist No. 78, at 468 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Simply put, Congress is not bound by the dead hand of the past—at least not when it comes to statutory law. B. Against that backdrop, this case is a straightforward one. The OPEN FOIA Act contains a legislative entrenchment: it says that, to be effective, any exemption from FOIA disclosure must “specifically cite[] to this paragraph [ 5 U.S.C. § 552 (b)(3)(B)]” if enacted after the 2009 law. 5 U.S.C. § 552 (b)(3)(B). The Act, thus, purports to prevent future congresses from passing FOIA exemptions without an express citation to “ 5 U.S.C. § 552 (b)(3)”—in other words, without using the “magical password.”  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 49 The 2012 Tiahrt Amendment doesn’t contain any passwords, but still seeks to exempt certain information from disclosure. Subject to a few exceptions, it explicitly prevents any funds appropriated by Congress from being used to “disclose part or all of the contents of the Firearms Trace System [FTS] database” maintained by the ATF. Pub. L. No. 112-55, 125 Stat. 552 , 609–10 (2011). As an appropriations rider, whatever release of information FOIA mandates, the Amendment blocks funding when it comes to the FTS database. 3 As is clear from their texts, the two laws conflict. Under the OPEN FOIA Act, the Tiahrt Amendment would not be a lawful exemption to FOIA’s disclosure rules since it doesn’t reference § 552(b)(3)(B). Conversely, the Tiahrt Amendment withdraws funding from any attempt to disclose FTS data under FOIA or any other law. Functionally, then, the OPEN FOIA Act says “disclose,” and the Tiahrt Amendment says “do not disclose.” The majority sides with the earlier OPEN FOIA Act rather than the Tiahrt Amendment, reasoning that Congress gave itself “explicit instructions” for how “to enact statutes that would exempt [FTS] data from disclosure.” Maj. Op. at 25 (quoting Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 403 F. Supp. 3d 3 An appropriations rider is no little matter. Under the Appropriations Clause, “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. “This straightforward and explicit command means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” United States v. McIntosh, 833 F.3d 1163 , 1174 (9th Cir. 2016) (simplified). Congress has given this clause criminal bite through the Antideficiency Act, which penalizes unauthorized government expenditures with hefty fines and imprisonment. See 31 U.S.C. §§ 1341 (a)(1), 1350. 50 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 343, 354 (S.D.N.Y. 2019)). Congress’s instructions to its future self are not controlling, though. The only binding limitations on how a particular Congress can exercise its legislative power are those outlined in the Constitution. 4 Because these two statutes are in conflict, I would construe the OPEN FOIA Act’s express-statement rule as merely a “background principle of interpretation,” Dorsey, 567 U.S. at 274 , and hold that the later-enacted Tiahrt Amendment controls. C. The majority doesn’t meaningfully contest any of the foregoing analysis and mainly contends that the parties did not analyze the law as I have. But this criticism ignores our longstanding precedent that “we can affirm a ruling on any ground supported by the record, even if that ground is not asserted by the appellee.” Angle v. United States, 709 F.2d 570 , 573 (9th Cir. 1983). While it is true that we generally rely on the arguments advanced by the parties, see Maj. Op. at 28–29 (quoting United States v. Sineneng-Smith, 140 S. Ct. 1575 , 1579 (2020)), we never abdicate our independent role in interpreting the law. If the parties don’t offer the correct reading of a particular statute, we are not bound to blindly follow their lead. Instead, as judges, our duty is to get the 4 If the Act instead premised future FOIA exemptions on lawmakers’ performance of the Cha Cha Slide on the Senate floor, surely the majority wouldn’t uphold such an “explicit instruction” as binding. What about a rule requiring a “supermajority” for an FOIA exemption? Or an explicit instruction that the OPEN FOIA Act can’t be repealed? Would the majority hold them as binding on future congresses? Surely not, but who can tell from their ruling today?  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 51 law right. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 , 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”). As Justice Ginsburg aptly stated, “a court is not hidebound by the precise arguments of counsel.” Sineneng-Smith, 140 S. Ct. at 1581. This principle applies even if the matter involves a “weighty issue of first impression.” Maj. Op. at 28. After all, judges are not like lemmings, following the parties off the jurisprudential cliff. Here, the parties framed this case as to whether the Tiahrt Amendment or the OPEN FOIA Act governs. I believe the doctrine against legislative entrenchment answers that question. Ironically, so does the majority. For all the pages spent dissecting why the Tiahrt Amendment is not a FOIA withholding statute, the majority ends up at exactly the same place I do—the Tiahrt Amendment governs nonetheless. So, the majority’s holding on this score is in no conflict with my own; even if a statute is not a recognized exemption under the OPEN FOIA Act, a later-enacted law prevails. II. Because the Tiahrt Amendment controls, the next question is whether it prohibits ATF from disclosing the information requested by the Center for Investigative Reporting (“CIR”). The Amendment prevents ATF from disclosing the contents of the FTS database save a few, specific exceptions. Pub. L. No. 112-55, 125 Stat. 552 , 609– 10 (2011). One of those exceptions is “the publication of . . . [1] annual statistical reports on [the importation and manufacturing of] products regulated by [ATF] . . . or [2] statistical aggregate data regarding firearms traffickers 52 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ and trafficking channels, or firearms misuse, felons, and trafficking investigations.” Id. CIR requests FTS data showing the total number of weapons traced back to former law enforcement ownership from 2006 to the present. It contends that ATF may disclose this information under the Tiahrt Amendment’s exception for “statistical aggregate data.” But that exception allows for the “publication of . . . statistical aggregate data,” not the FOIA disclosure of such data. Pub. L. No. 112-55, 125 Stat. 552 , 609–10 (2011) (emphasis added). To the contrary, the disclosure of that data is explicitly prohibited by the main provision of the Amendment. See id. (“[N]o funds appropriated under this or any other Act may be used to disclose part or all of the contents of the Firearms Trace System database[.]”). That Congress used both “disclos[ure]” and “publication” in the Tiahrt Amendment indicates that the two terms mean different things. As our court has explained, “[i]t is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words.” SEC v. McCarthy, 322 F.3d 650 , 656 (9th Cir. 2003). Thus, distinguishing between “publication” and “disclos[ure]” is essential to this case. Without statutory definitions, we look to the common, contemporary meaning of the words when enacted. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 , 2362 (2019). Dictionaries define “disclose” as “expos[ing] to view . . . mak[ing] known” or “mak[ing] secret or new information known.” Pocket Oxford American Dictionary (2d. ed., 2008); Merriam-Webster’s Collegiate Dictionary (2d. ed., 2008). In contrast, “publication” references the release of prepared information usually in print or electronic  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 53 form. See Pocket Oxford American Dictionary, supra (defining “publish” as “to prepare and issue a book, newspaper, piece of music for public sale” or to “print something in a book, newspaper, or journal so as to make it generally known”). Thus, in common usage, “publication” means “the act or process of publishing printed matter” or “an issue of printed material offered for distribution or sale.” Merriam-Webster’s Collegiate Dictionary, supra; see also American Heritage Dictionary (5th ed., 2020) (defining “publication” as “[c]ommunication of information to the public, [as in] the publication of the latest unemployment figures”). The context of the Amendment supports this plain- meaning interpretation. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 , 133 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”) (simplified). The Amendment permits “publication” of two specific materials: (1) “annual statistical reports” and (2) “statistical aggregate data.” 125 Stat. at 610. While “data” could be disseminated in formal and informal ways, the word “reports” commonly refers to a formal—i.e., published—distribution of prepared information. 5 Consequently, the most natural reading of “publication” in 5 See Report, Oxford English Dictionary Online, https://www.oed.com/view/Entry/162917? (“An evaluative account or summary of the results of an investigation, or of any matter on which information is required (typically in the form of an official or formal document), given or prepared by a person or body appointed or required to do so.”). 54 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ the statute refers to the formalized, prepared release of information by the ATF. 6 How Congress uses “disclosure” and “publication” in the FOIA context also supports this plain meaning construction. In FOIA itself, Congress repeatedly used “disclosure” to describe an agency’s direct release of information under the Act to a requester. See, e.g., 5 U.S.C. § 552 (a)(8), (b)(3), (b)(6), (c)(1). FOIA’s uses of “publication” or “publish,” by contrast, unambiguously refer to the formal release of information to the public at large by the agency. For example, FOIA requires agencies to “publish” its general rules and procedures “in the Federal Register for the guidance of the public.” Id. § 552(a)(1). It similarly provides that an agency must provide certain information in electronic format “unless the materials are promptly published and copies offered for sale.” Id. § 552(a)(2). Thus, FOIA itself uses “publication” differently from “disclos[ure].” 7 6 To be sure, the word “publication” does have a broader meaning. For example, some dictionaries also define “publication” to mean the “[c]ommunication of information to the public.” Publication, Merriam- Webster’s Collegiate Dictionary, supra. Nevertheless, as discussed above, this broader meaning doesn’t fit into Congress’s specific use of the term in the Tiahrt Amendment. 7 The majority discounts these examples as non-determinative because, as it says, the Tiahrt Amendment is not a “part of FOIA’s organic statute.” Maj. Op. at 34 n.17. But, “courts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter.” United States v. Novak, 476 F.3d 1041 , 1051 (9th Cir. 2007); see also Brown & Williamson Tobacco Corp., 529 U.S. at 133 (“[T]he meaning of one statute may be affected by other Acts.”). Accordingly, FOIA’s use of the same terms as the Tiahrt Amendment can inform the latter’s meaning.  CENTER FOR INVESTIGATIVE REPORTING V. USDOJ 55 Although the majority acknowledges that “publication” means widespread dissemination to the public while “disclosure” means production only to another individual, it finds no problem in conflating the two. See Maj. Op. 30–31. That’s because, says the majority, the ATF’s “disclosure” of the data here will count as a “publication” since CIR intends to make that data public. Thus, according to the majority, ATF publishes information if it discloses such information to someone else who happens to be a “representative of the news-media,” who will then communicate it to the masses. Maj. Op. at 31. 8 This novel interpretation of “publication” apparently turns, not on ATF’s actions, but on the actions of the requesters who receive the information from ATF. This reasoning improperly shoehorns “disclosure” into the definition of “publication” and eviscerates the prohibition on funding in the Tiahrt Amendment. Every disclosure request for data is now a publication request so long as the requester claims an intention to disseminate the information widely. The majority thus permits a narrow, textually limited exception to circumvent the prohibition on disclosure itself. 9 8 What’s more, the majority doesn’t define who counts as a “representative of the news-media” or what amount of attenuation, if any, is too much for the majority’s definition of “publication.” For example, is a citizen journalist with a Twitter account a “representative of the news-media”? What if ATF gives the information to someone who then promises to give it to someone else who publishes it? Does that count? The majority’s analysis opens up a can of worms ripe for endless litigation. And it does so by missing the law’s simple command: it is ATF’s “publication” of the data, not the requester’s, that is permitted by the Tiahrt Amendment. 9 The majority believes FOIA justifies its analysis because it permits the “disclosure” of certain information without charge if it will “contribute significantly to public understanding.” See Maj. Op. at 33– 34 (quoting 5 U.S.C. § 552 (a)(4)(A)(iii)). This subparagraph just 56 CENTER FOR INVESTIGATIVE REPORTING V. USDOJ But the accurate interpretation of “publication of . . . statistical aggregate data” dooms CIR’s case. This exception refers to ATF’s publication of prepared, formal documents of aggregated statistics—not ad hoc responses to FOIA requests. Because the Tiahrt Amendment prohibits the type of disclosure sought by CIR, and no exceptions apply, the district court’s grant of summary judgment in favor of ATF should be affirmed. III. As the majority observes, the discourse over guns, crime, and firearms regulation ignites passions across our country. CIR’s wish to further that public debate with the evidence from ATF may be laudable. CIR’s FOIA request may very well, as the majority surmises, advance an issue of public importance. But that a party comes before this court for pure-hearted reasons does not empower us to rewrite the law. Our duty always remains the same—to say what the law is. And here, Congress has spoken: the law prohibits disclosure of the information CIR seeks. Because the majority holds otherwise, I respectfully dissent. acknowledges the obvious point that the “disclosure” of information to a requester can lead to its widespread dissemination. But this doesn’t turn the word “disclosure” into “publication.” Tellingly, this subparagraph of FOIA doesn’t use the word “publication” at all. Instead, it describes exactly what is happening here—the production of information to a news media entity that will distribute it to an audience— yet explicitly refers to that course of conduct as a “disclosure.” Accordingly, despite the majority’s reinvention of terms, the Tiahrt Amendment only permits “publication” of certain FTS data by the ATF and prohibits the release of any of the FTS information sought by CIR.

2020-12-03 18:00:28.812364+00

http://www.ca10.uscourts.gov/opinions/20/20-2069.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 3, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 20-2069 v. (D.C. Nos. 1:19-CV-00613-JCH-SMV & 1:14-CR-03758-JCH-SMV-1) LUIS MENDOZA-ALARCON, (D. New Mexico) Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________ A federal jury convicted Luis Mendoza-Alarcon of conspiracy to possess with intent to distribute five kilograms or more of cocaine. Mr. Mendoza-Alarcon filed a motion under 28 U.S.C. § 2255 , arguing his trial counsel provided ineffective assistance by (1) failing to request further legal instruction in response to a jury question, and (2) failing to argue in closing that the government had not proven intent to distribute. The district court denied the motion without the evidentiary hearing requested by Mr. Mendoza-Alarcon and without accepting a proffered affidavit from his trial counsel. It also denied Mr. Mendoza-Alarcon a certificate of appealability (“COA”). * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Mr. Mendoza-Alarcon now asks this court to hear his appeal from that order and reverse the district court’s decision. For the reasons stated below, we deny his request for a COA and dismiss this matter.1 I. BACKGROUND2 Mr. Mendoza-Alarcon and Giovanni Montijo-Dominguez were convicted after a joint jury trial of, as relevant to this appeal, conspiracy to possess cocaine with intent to distribute. At trial, they did not dispute that Mr. Mendoza-Alarcon had attempted to purchase a large quantity of cocaine. Their defenses were that Mr. Mendoza-Alarcon acted under duress due to a threat to his daughter and that Mr. Montijo-Dominguez was unaware he was participating in a drug deal, instead believing he was helping Mr. Mendoza-Alarcon pay a cartel not to harm Mr. Mendoza-Alarcon’s daughter. Accordingly, Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez argued there was no 1 Mr. Mendoza-Alarcon asks to supplement the record with the majority of exhibits entered at trial. He informs us the government takes no position on his request. We grant his request with regard to the electronically filed exhibits and deny it with regard to his request to conventionally file DVDs. Having considered the electronically filed exhibits, which include transcripts of the video and audio files Mr. Mendoza- Alarcon seeks to file conventionally, we determine the conventionally filed recordings would not alter our conclusions. And our review of the electronically filed exhibits indicates we need not discuss them in detail as they do not bear upon our conclusions that the jury necessarily determined Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez conspired with one another, and that the jury followed the jury instructions. 2 Some volumes of the Record on Appeal have transcripts which appear to have been stamped with numbers in the prior appeal but now no longer reflect the page number in those volumes because other transcripts have been placed before them. We cite to the page of the PDF in the current Record on Appeal. 2 conspiracy with regard to the drugs and that Mr. Montijo-Dominguez, like Mr. Mendoza- Alarcon, was acting under duress. A. Factual History According to Mr. Mendoza-Alarcon, he participated in several telephone conversations between May and September of 2016 with Lazaro Mendoza-Dominguez3 regarding Mr. Mendoza-Alarcon’s purchase of a house. During these conversations, Mr. Mendoza-Alarcon revealed he had $150,000 in cash available to put toward the purchase. On September 29, Lazaro called to confirm Mr. Mendoza-Alarcon still had the money. When Mr. Mendoza-Alarcon indicated that he did, Lazaro told Mr. Mendoza- Alarcon he would be contacted by a Mexican drug cartel to purchase drugs. Lazaro instructed Mr. Mendoza-Alarcon to complete the purchase and to bring the drugs to Lazaro. Otherwise, Lazaro threatened, the cartel would kidnap and torture Mr. Mendoza- Alarcon’s adult daughter, who lived in Mexico. And, Lazaro warned, the cartel would do the same if Mr. Mendoza-Alarcon involved the police or mentioned Lazaro. Lazaro told Mr. Mendoza-Alarcon the cartel contact would identify as “Sergio” and use certain code words to refer to drugs and money. Mr. Mendoza-Alarcon testified he took this threat seriously, and his daughter testified that he instructed her to go live with her grandparents. 3 We refer to Lazaro Mendoza-Dominguez by his first name to avoid confusion with the defendants. 3  Homeland Security Investigations (“HSI”), part of the Department of Homeland Security, provided additional evidence. HSI learned that a person called “Leche was interested in . . . purchasing 6 kilograms of cocaine.” ROA, Vol. V at 802. HSI also discovered that Leche was Mr. Mendoza-Alarcon. Acting on this information, an undercover HSI agent posing as a cartel member called Mr. Mendoza-Alarcon to set up the transaction, purportedly on behalf of “Sergio.” Mr. Mendoza-Alarcon contacted his friend, Mr. Montijo-Dominguez, who agreed to accompany Mr. Mendoza-Alarcon to Albuquerque. Mr. Mendoza-Alarcon maintains he told Mr. Montijo-Dominguez only that they needed to deliver money to prevent the kidnapping of Mr. Mendoza-Alarcon’s daughter. Mr. Mendoza-Alarcon testified he told Mr. Montijo-Dominguez nothing about the drug transaction. The two men drove to Albuquerque, where HSI agents posing as cartel members gave Mr. Mendoza-Alarcon packages that he believed contained cocaine. Mr. Mendoza-Alarcon instructed Mr. Montijo-Dominguez to turn over the $150,000 in exchange. HSI then arrested both men. B. Procedural History The government charged Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez with conspiracy to possess with intent to distribute five kilograms or more of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A), in addition to other charges not relevant here. The matter proceeded to a joint jury trial. In closing, the government argued Mr. Mendoza-Alarcon had entered into an agreement with Lazaro and brought Mr. Montijo-Dominguez into that agreement. The government did not explicitly discuss the intent to distribute element, but rather focused 4 on the duress defense and Mr. Montijo-Dominguez’s knowledge that he was participating in a drug deal. But it also implied the money Mr. Mendoza-Alarcon brought to the drug deal was ill-gotten, possibly from drug trafficking beyond the charged conduct. Mr. Mendoza-Alarcon’s trial counsel used closing argument to argue duress and did not directly address intent to distribute. The district court instructed the jury: A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose. It is a kind of “partnership in criminal purposes” in which each member becomes the agent or partner of every other member. The evidence may show that some of the persons involved in the alleged conspiracy are not on trial. This does not matter. There is no requirement that all members of a conspiracy be charged or tried together in one proceeding. The evidence need not show that the members entered into an express or formal agreement. Nor does the law require proof that the members agreed on all the details. But the evidence must show that the members of the alleged conspiracy came to a mutual understanding to try to accomplish a common and unlawful plan. ROA, Vol. III at 523. This instruction appeared on page 6 of the jury instructions. During deliberations, the jury sent a note to the judge: “pg 6 of instructions—2 or more persons agreed to possess . . . . . Who can be the 2 people—agents, defendants, etc.?” Id. at 542 . Mr. Mendoza-Alarcon’s trial counsel took the position that “the instruction stands on its own. There’s no reason to supplement it with an additional answer.” ROA, Vol. V at 2054. The government argued—incorrectly—that under “federal law . . . it can be anyone” and the district court should so inform the jury. Id. at 2055 ; contra United States v. Barboa, 777 F.2d 1420 , 1422 (10th Cir. 1985) (holding “that there can be no indictable conspiracy involving only the defendant and government 5 agents or informers”). Mr. Mendoza-Alarcon’s trial counsel asked the district court to tell the jury, “You must rely on the instruction as given.” Id. at 2056. The district court agreed with Mr. Mendoza-Alarcon’s trial counsel, noting the instruction was “a Tenth Circuit pattern instruction. So, [it was] inclined, then, to just stick with the circuit’s instruction.” Id. at 2058. The district court accordingly sent a note to the jury reading, “You must rely on the Court’s instructions as written.” Id. The jury found Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez guilty on the conspiracy count. The district court sentenced Mr. Mendoza-Alarcon to 144 months’ imprisonment. Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez both appealed, arguing the district court erred in denying their motions for judgment of acquittal and refusing to clarify the conspiracy instruction in response to the jury’s question. United States v. Montijo-Dominguez, 771 F. App’x 870, 871 (10th Cir. 2019) (unpublished). Mr. Montijo- Dominguez also challenged his sentence. Id. We consolidated their appeals under Federal Rule of Appellate Procedure 3(b)(2). Id. Concluding that both defendants had invited error, we held they were precluded from contesting the trial court’s response to the jury’s question. Id. at 874. Next, we rejected the defendants’ claims that no evidence showed they conspired to distribute cocaine and that, because Mr. Montijo-Dominguez did not know about the cocaine, the government had presented insufficient evidence to prove conspiracy. Id. at 874–75. We explained that the intention “to transfer possession of the cocaine to Lazaro” was intent to distribute. Id. at 875. And we held there was sufficient evidence to support such an intention, including the amount of the narcotics (although 6 that would not be sufficient alone), “testimony that Mr. Mendoza[-Alarcon] spoke to the agents about a ‘next time,’” and testimony that the federal agents “believed [Mr. Montijo- Dominguez] to be an experienced drug trafficker” based on their conversation with him. Id. In response to Mr. Montijo-Dominguez’s sentencing challenge, we expressly concluded that “the jury necessarily must have found that Mr. Montijo[-Dominguez] knowingly participated in a conspiracy with Mr. Mendoza[-Alarcon].” Id. at 876. Mr. Mendoza-Alarcon timely filed a motion to vacate under 28 U.S.C. § 2255 , alleging ineffective assistance of counsel. The district court referred the motion to a magistrate judge, who recommended it be denied without an evidentiary hearing. The magistrate judge proposed holding that Mr. Mendoza-Alarcon’s trial counsel had not fallen below an objective standard of reasonableness regarding the jury question, and that neither the failure to request a supplemental jury instruction in response to the jury question nor the failure to argue the government had not proved intent to distribute was prejudicial. Mr. Mendoza-Alarcon objected. The district court adopted the magistrate judge’s proposed findings and recommended disposition, entered judgment, and denied a COA. Mr. Mendoza-Alarcon then filed a notice of appeal and asked this court to grant a COA. II. DISCUSSION Under 28 U.S.C. § 2253 (c)(1)(B), appeal from a final order on a motion under 28 U.S.C. § 2255 is allowed only upon issuance of a COA. To obtain a COA, Mr. Mendoza- Alarcon must demonstrate “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented 7 are adequate to deserve encouragement to proceed further.” United States v. Silva, 430 F.3d 1096 , 1100 (10th Cir. 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322 , 327 (2003)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336 . A “claim can be debatable [for COA purposes] even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Buck v. Davis, 137 S. Ct. 759 , 774 (2017) (quoting Miller-El, 537 U.S. at 338 ). Mr. Mendoza-Alarcon raised two claims of ineffective assistance of counsel, one claim relating to his trial counsel’s failure to request a specific response to the jury’s question and one claim relating to his trial counsel’s failure to argue in closing that the government had not proven intent to distribute. He asks us to issue a COA on both claims. “To establish ineffective assistance of counsel, a movant must show (1) that counsel’s representation was deficient because it ‘fell below an objective standard of reasonableness’ and (2) that counsel’s ‘deficient performance prejudiced the defense.’” United States v. Herring, 935 F.3d 1102 , 1107 (10th Cir. 2019) (quoting Strickland v. Washington, 466 U.S. 668 , 687–88 (1984)). The prejudice prong of the Strickland test is dispositive of both claims. “The standard measure of prejudice in the context of an ineffective assistance of counsel claim is the effect an attorney’s deficient performance had on the result or outcome.” United States v. Rushin, 642 F.3d 1299 , 1309 (10th Cir. 2011). Mr. Mendoza-Alarcon must show “there is a reasonable probability that, absent the errors, the factfinder would have had a 8 reasonable doubt respecting guilt.” Hanson v. Sherrod, 797 F.3d 810 , 826 (10th Cir. 2015) (quoting Strickland, 466 U.S. at 695 ). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Ryder ex rel. Ryder v. Warrior, 810 F.3d 724 , 741 (10th Cir. 2016) (quoting Strickland, 466 U.S. at 694 ). A. The Jury Question Mr. Mendoza-Alarcon argues his trial counsel was ineffective for failing to ask the district court to inform the jury that he could not be convicted of conspiracy “based on agreement with a government agent or cooperator,” and that the district court erred in rejecting this ineffective assistance argument. Appellant Br. at 37. The district court held Mr. Mendoza-Alarcon did not establish prejudice from the failure to request such a response, because the evidence did not support that Lazaro was a government agent and the jury necessarily found Mr. Mendoza-Alarcon conspired with Mr. Montijo- Dominguez, who was not a government agent. Mr. Mendoza-Alarcon argues the district court “overlooked . . . facts suggesting Lazaro was cooperating with the government.” Id. at 42. Additionally, he argues the evidence demonstrated no conspiracy with Mr. Montijo-Dominguez. Because no reasonable jurist could disagree with the district court’s conclusion that the jury necessarily determined Mr. Mendoza-Alarcon conspired with Mr. Montijo-Dominguez, we deny a COA on this issue. “In this circuit, theories raised for the first time in objections to the magistrate judge’s report are deemed waived.” United States v. Garfinkle, 261 F.3d 1030 , 1031 (10th Cir. 2001). Before the magistrate judge, Mr. Mendoza-Alarcon “made only one argument regarding” the theory that he had conspired with Mr. Montijo-Dominguez: that 9 the jury’s note would be unnecessary if the jury had made such a finding. ROA, Vol. I at 2302. He makes this argument on appeal as well. But Mr. Mendoza-Alarcon added an argument in his objections to the magistrate judge’s report and recommendation: that the jury could have concluded Mr. Montijo-Dominguez conspired with the government agents. He raises this argument again on appeal. We agree with the district court that this argument was waived by Mr. Mendoza-Alarcon’s failure to raise it before the magistrate judge. Moreover, we are not persuaded by Mr. Mendoza-Alarcon’s properly preserved argument that the jury question would have been unnecessary “[i]f the jury had concluded that [the] defendants conspired with each other.” Appellant Br. at 46. The note asked, in full, “pg 6 of instructions—2 or more persons agreed to possess . . . . . Who can be the 2 people—agents, defendants, etc.?” ROA, Vol. III at 542. So, the jury evinced the same level of uncertainty about whether the two defendants could conspire as whether a defendant could conspire with a government agent. It went on to convict both Mr. Mendoza-Alarcon and Mr. Montijo-Dominguez of conspiracy to possess the cocaine with intent to distribute. The government’s theory presented to the jury was that Mr. “Mendoza-Alarcon entered into this agreement with Lazaro” and then “brought [Mr.] Montijo-Dominguez into the agreement.” ROA, Vol. V at 1963. On direct appeal, we held the “evidence was sufficient to support a finding that Mr. Mendoza[-Alarcon] and Mr. Montijo[-Dominguez] conspired to possess with an intent to distribute large quantities of cocaine.” Montijo-Dominguez, 771 F. App’x at 876. That holding was based upon the theory that they conspired with one another. Id. at 875– 10 76. And in rejecting an argument from Mr. Montijo-Dominguez that the jury might have credited his testimony to the contrary, we held “the jury necessarily must have found that Mr. Montijo[-Dominguez] knowingly participated in a conspiracy with Mr. Mendoza[- Alarcon].” Id. at 876. Under these circumstances, Mr. Mendoza-Alarcon is not entitled to a COA to challenge the district court’s conclusion that trial counsel’s failure to ask the district court to instruct the jury that a conspiracy may not be with a government agent, whether deficient or not, did not prejudice Mr. Mendoza-Alarcon. B. Intent to Distribute Mr. Mendoza-Alarcon argues the district court also erred in rejecting the argument that his counsel was ineffective for failing to argue the intent to distribute element in closing. Assuming without deciding that Mr. Mendoza-Alarcon’s trial counsel was deficient in failing to argue the government had not proven intent to distribute, no reasonable jurist would disagree with the district court’s conclusion that this assumed error did not result in prejudice. Mr. Mendoza-Alarcon provides only three sentences of argument on this point: the first is conclusory, the second notes only that the district court “surmised that the jury may have believed [Mr.] Mendoza-Alarcon’s testimony, but concluded that [the] defendants technically did not meet the stringent requirements of the duress defense,” and the third speculates, “it is reasonably probable that the jury would have weighed . . . in conjunction with the lack of evidence of drug trafficking or drug history on Mendoza-Alarcon’s part and arrived at a different verdict.” Appellant Br. at 51–52. 11  This argument relies on the assumption that the jury was not “made aware that the government was required to prove a shared intent to distribute.” Id. at 52. But the jury was instructed it needed to find beyond a reasonable doubt that “two or more persons agreed to possess a controlled substance for distribution.” ROA, Vol. III at 523. “[A] jury is presumed to follow the trial court’s instructions.” Grant v. Royal, 886 F.3d 874 , 940 (10th Cir. 2018). Mr. Mendoza-Alarcon’s argument that, despite this instruction, “the jury could easily have failed to realize that it was required to specifically find that two or more persons shared the intent to distribute” flies in the face of this presumption. Appellant Br. at 49. Furthermore, it is unsupported by any argument that might rebut such presumption. Accordingly, Mr. Mendoza-Alarcon has not met his burden of demonstrating a COA is warranted on the ground that his trial counsel was ineffective in failing to argue in closing that the government had failed to prove intent to distribute. C. Decision Not to Hold an Evidentiary Hearing Mr. Mendoza-Alarcon also asks for a COA on the question of whether the district court erred in denying his request for an evidentiary hearing. Mr. Mendoza-Alarcon argues he was entitled to an evidentiary hearing because the record does not conclusively show he is entitled to no relief. See 28 U.S.C. § 2255 (b). Because we hold no reasonable jurist could disagree with the district court’s conclusion that the record definitively shows no prejudice arose from trial counsel’s alleged failures, no COA is warranted on this ground. 12  III. CONCLUSION For the foregoing reasons, we DENY Mr. Mendoza-Alarcon’s request for a certificate of appealability and DISMISS this matter. Entered for the Court Carolyn B. McHugh Circuit Judge 13

2020-12-03 18:00:49.324949+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv2204-21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TERESA TUMBLIN, Plaintiff, v. No. 19-cv-2204 (DLF) WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES, Defendant. MEMORANDUM OPINION Before the Court is Attorney General William Barr’s 1 Partial Motion to Dismiss or, Alternatively, for Partial Summary Judgment, Dkt. 17. For the reasons that follow, the Court will grant the motion. I. BACKGROUND The Court takes the well-pleaded factual allegations in the complaint, Dkt. 1, as true. Ashcroft v. Iqbal, 556 U.S. 662 , 679 (2009). Teresa Tumblin, an employee of the Federal Bureau of Investigation (FBI), alleges that she was retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-5(f); 2000e-16, et seq. Second Am. Compl. (Compl.), ¶ 1, Dkt. 15. Tumblin filed her first equal employment opportunity (EEO) complaint in 2009, id. ¶¶ 27–28, which was resolved through mediation, id. Tumblin later made three additional complaints, in 2015, 2017, and 2018 respectively. Id. ¶¶ 29–32. 1Title VII states that “the head of [the plaintiff’s] department, agency, or unit, as appropriate shall be the defendant” in civil actions. 42 U.S.C. § 2000e-16(c). The current Attorney General, William Barr, is the head of Tumblin’s agency and thus the proper defendant in this case.  The underlying events that gave rise to Tumblin’s complaints began in 2012, when she began working as a quality assurance reviewer under team lead Cheryl Waddell. Id. ¶¶ 33–34. Tumblin believed that Waddell was aware of her 2009 EEO complaint and treated her with hostility as a result. Id. ¶¶ 38, 51, 54. In particular, “Waddell regularly and repeatedly lost her composure in her interactions with Plaintiff raising her voice and berating Plaintiff,” id. ¶ 39, and “regularly marked Plaintiff’s work as ‘QA error,’ a designation that she did not apply to the work performed by Plaintiff’s co-workers,” id. ¶ 40. Waddell also partially revoked Tumblin’s access to the FBI Audit System. Id. ¶ 41. Tumblin reported her concerns about Waddell to management. Id. ¶ 42. A manager then told Tumblin that he was considering removing her from the quality assurance unit as a result of her troubled relationship with Waddell. Id. ¶ 43. In a separate incident in February 2015, Tumblin was seated near Ann Nash, another employee in the quality assurance unit. Id. ¶¶ 44–45. Nash used profanity in the earshot of Tumblin, even though Nash was aware of Tumblin’s aversion to profanity. Id. ¶¶ 45–46. In another set of incidents, Tumblin alleges that she applied for various positions but was rejected even though she was more qualified than all of the other applicants. Id. ¶¶ 59, 62, 69– 70, 74, 79–81. In April 2015, she informed a supervisor that she was interested in joining the National Name Check Program training team, id. ¶ 55; in December 2015, she applied for another new position but was not chosen, id. ¶ 61; in February 2016, she was not selected for a one-year detail on the quality assurance team, id. ¶ 66; in March 2017, she applied for a vacant position on a Quality Research Management Unit training team, id. ¶¶ 71, 73; and in August 2018, she learned that another employee had been chosen for a rotational assignment for back-to- back terms even though Tumblin had been previously denied the opportunity, id. ¶ 96. 2  Finally, Tumblin cites a variety of other events that she alleges are related to her EEO activity. In May 2018, Tumblin was given a Mid-Year Progress Review of “successful” overall, rather than the “excellent” rating she received the year before. Id. ¶¶ 84–85. When she asked about the rating, Tumblin was not given specific feedback. Id. ¶¶ 86–87. Next, in August 2018, Tumblin requested to “earn compensatory time as she did not have enough leave built in to take care of her mother.” Id. ¶ 91. She alleges that she had been allowed to do so in the past but was denied in retaliation for her EEO activity. Id. ¶¶ 92–94. Tumblin also asked, more than once, to use official time to work on her EEO complaints and was either rejected or did not receive a response. Id. ¶¶ 88, 103–04. And finally, Tumblin alleges that her “return rate was manipulated” in retaliation for her prior protected activities. Id. ¶ 108. II. LEGAL STANDARDS Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007). A facially plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . This standard does not amount to a specific probability requirement, but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 557 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). A complaint need not contain “detailed factual allegations,” but alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). 3  Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679 , and the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471 , 476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply, however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 . When deciding a Rule 12(b)(6) motion, the court may generally consider only the complaint itself, documents attached to the complaint, documents incorporated by reference in the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621 , 624 (D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062 , 1066 (D.C. Cir. 1992). III. ANALYSIS The Attorney General moves to dismiss three of the five counts in Tumblin’s complaint. See Mot. to Dismiss. First, he argues that count IV should be dismissed because Tumblin failed to exhaust her administrative remedies, or alternatively, because she has not alleged a causal connection between her nonselection for the National Name Check Program training team and her protected activities. See id. at 8. Next, he argues that count II should likewise be dismissed because Tumblin has failed to plausibly allege a causal connection between her nonselection for 4 the Quality Research Management Unit and her protected activities. See id. at 11. Finally, he argues that count I should be dismissed because Tumblin has not alleged the requisite “severe or pervasive” harassment or causal connection to support a retaliatory hostile work environment claim. See id. at 14. A. Nonselection Claims (Counts II and IV) 1. The National Name Check Program Nonselection (Count IV) Tumblin’s claim of retaliatory nonselection in count IV fails because Tumblin did not exhaust her administrative remedies on this claim. Title VII requires that plaintiffs “timely exhaust their administrative remedies before bringing their claims to court.” Payne v. Salazar, 619 F.3d 56 , 65 (D.C. Cir. 2010) (internal quotations and alteration omitted). This exhaustion requirement “serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904 , 907 (D.C. Cir. 1995) (internal quotation marks and alteration omitted). “Under Title VII, employees who believe they have been discriminated against must first consult an Equal Employment Opportunity (EEO) Counselor within 45 days of the alleged discriminatory acts.” In re James, 444 F.3d 643 , 644 (D.C. Cir. 2006); see 29 C.F.R. § 1614.105 (a)(1). Tumblin first contacted the EEO Counselor about the alleged retaliatory nonselection on October 21, 2015. See Mot. to Dismiss Ex. 7 (EEO Complaint, FBI-2016- 00024, December 1, 2015), Dkt. 17-9. 2 Meanwhile, Tumblin first found out that she was not 2In evaluating whether a Title VII plaintiff has exhausted her administrative remedies, the Court may take notice of public records, such as EEOC and Board complaints and decisions, without converting a motion to dismiss into a motion for summary judgment. See Vasser v. McDonald, 228 F. Supp. 3d 1 , 14 (D.D.C. 2016); see also Williams v. Chu, 641 F. Supp. 2d 31 , 35 (D.D.C. 2009) (“A plaintiff’s EEOC charge and the agency’s determination are both public records, of which this Court may take judicial notice.” (internal quotation marks and alteration omitted)). 5 selected for the role on July 1, 2015. Compl. ¶ 58. This represents a time gap of 112 days, well in excess of the 45-day requirement. See Panarello v. Zinke, 254 F. Supp. 3d 85 , 100 (D.D.C. 2017), aff'd sub nom. Panarello v. Bernhardt, 788 F. App’x 18 (D.C. Cir. 2019) (dismissing Title VII discrimination claims for failure to exhaust because the claims arose more than 45 days before the complainant initiated contact with an EEO Counselor); Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164 , 178 (D.D.C. 2016) (same). Thus, as to this alleged retaliatory nonselection, Tumblin failed to exhaust her remedies within the time period required. Tumblin does not dispute this fact, but instead argues: (1) that the FBI waived this argument by not dismissing her claim when she first contacted the EEO officer in October of 2015, and (2) that equitable tolling should excuse the delay. See Pl.’s Opp’n at 12, Dkt 18. For waiver, Tumblin relies on Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019), for the proposition that an agency waives an exhaustion argument when they raise it too late in the course of the litigation. See id. In general, “agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint . . . .” Bowden v. United States, 106 F.3d 433 , 438 (D.C. Cir. 1997). In Fort Bend, the Supreme Court held that a Title VII procedural requirement was “mandatory without being jurisdictional” and thus could be forfeited where the defendant delayed bringing the argument. 139 S. Ct. at 1852 . But unlike here, the defendant in that case did not raise its procedural argument “until after an entire round of appeals all the way to the Supreme Court.” Id. at 1848 (internal quotation marks omitted). Here, by contrast, the FBI raised its exhaustion argument in its first substantive motion in this litigation, see Def.’s First Mot. to Dismiss at 6, Dkt. 10-1, and in the final agency decision as well, see Mot. to Dismiss Ex. 8 at 14–15 (Final Agency Decision, FBI-2016-00024, September 6, 2019); see also Vasser v. 6 McDonald, 228 F. Supp. 3d 1 , 10 (D.D.C. 2016) (noting that courts take judicial notice of Final Agency Decisions for exhaustion purposes without converting to summary judgment where the authenticity of the public document is not disputed). For these reasons, the exhaustion argument has not been forfeited or waived. As for Tumblin’s equitable tolling argument, it is true that the 45-day timing requirement “is subject to . . . equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385 , 393 (1982). “In Title VII cases . . . courts have excused parties, particularly those acting pro se, who make diligent but technically defective efforts to act within a limitations period.” Bowden, 106 F.3d at 438 . But this doctrine is “to be applied sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 , 113 (2002). Tumblin argues that because she had overlapping open complaints when she contacted the EEO officer in October, she assumed that her new October complaint would be included in the case opened earlier in 2015. Pl.’s Opp’n at 12–13. Given Tumblin’s familiarity with the EEO complaint process, see Compl. ¶¶ 27–32, however, she has not shown that this assumption reflected anything more than the kind of “garden variety claim of excusable neglect” to which “equitable tolling principles do not extend.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 , 96 (1990). In sum, because Tumblin failed to exhaust administrative remedies within the time required and her equitable tolling arguments are unavailing, the Court need not consider the defendant’s causation arguments, see Mot. to Dismiss at 12–13, and will dismiss count IV. 2. The Quality Research Management Unit Nonselection (Count II) As for Tumblin’s retaliatory nonselection claim in count II, which relates to the Quality Research Management Unit training position, see Compl. ¶ 127, the Attorney General argues that 7 Tumblin has failed to plausibly allege a causal connection between her protected activities and her nonselection for this position. Mot. to Dismiss at 13–14. Title VII “both prohibits employers from engaging in employment practices that discriminate . . . and bars them from retaliating against an employee because she has opposed any such practice.” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65 , 68 (D.C. Cir. 2015) (internal quotation marks and alterations omitted). “To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191 , 1198 (D.C. Cir. 2008) (emphasis added). The causation prong “may be established if the plaintiff alleges that the employer had knowledge of the protected activity and that the adverse action occurred soon thereafter.” McNair v. Dist. of Columbia, 213 F. Supp. 3d 81 , 89 (D.D.C. 2016). As an initial matter, Tumblin “need not plead facts showing each of these elements in order to defeat a motion under Rule 12(b)(6).” Gordon v. U.S. Capitol Police, 778 F.3d 158 , 161–62 (D.C. Cir. 2015). After all, retaliation “can be proven by direct evidence rather than through the McDonnell Douglas prima facie case.” Id. at 162 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). But Tumblin must plead facts sufficient to nudge her claims “across the line from conceivable to plausible,” Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570 ); Menoken v. McGettigan, 273 F. Supp. 3d 188 (D.D.C. 2017) (applying Iqbal’s pleading standard in the retaliation context). To support her claim of retaliation, Tumblin only alleges that: (1) “The management officials responsible for Plaintiff’s retaliatory non-selection were aware of Plaintiff’s prior EEO activity,” Compl. ¶ 126, and (2) “Defendant’s management officials were motivated in the 8 decision to deny Plaintiff a position on the QRMU training team by virtue of animus towards Plaintiff caused by Plaintiff’s prior EEO activity.” Compl. ¶ 127. Because Tumblin does not allege any facts to support a direct inference of causation, see Pl.’s Opp’n at 14–15, the basis for such an inference must be the temporal proximity of her prior EEO activity and the later nonselection. See McNair, 213 F. Supp. 3d at 89. Although no bright line rule exists, “this Circuit has generally found that a two- or three-month gap between the protected activity and the adverse employment action does not establish the temporal proximity needed to prove causation.” Jones v. D.C. Water & Sewer Auth., 922 F. Supp. 2d 37 , 42 (D.D.C. 2013); see, e.g., Taylor v. Solis, 571 F.3d 1313 , 1322 (D.C. Cir. 2009) (holding that a two-and-a-half-month lapse was too long to assume temporal proximity). The last EEO activity Tumblin engaged in before she applied for a position on the Quality Research Management Unit training team occurred in early to mid-2015. See Compl. ¶ 29 (plaintiff initiated EEO counseling on February 12, 2015), ¶ 30 (plaintiff filed a formal complaint of discrimination on March 28, 2015). Meanwhile, she was not selected for the position in March 2017. See Compl. ¶ 71. This represents a time gap of approximately two years between any protected activity and the adverse action. Compare Compl. ¶ 30 (plaintiff’s last EEO activity before July 2017 was on March 28, 2015), with Compl. ¶ 71 (plaintiff applied for the quality research management unit training position “on or about March 10, 2017”). This gap is far off the two to three month benchmark that courts in this circuit typically use as a metric, and is certainly not “very close” in time, as required for a plausible inference of temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268 , 273 (2001). For this reason, the Court will dismiss count II of Tumblin’s complaint. 9  B. Retaliatory Hostile Work Environment Claim (Count I) In count I of her complaint, Tumblin alleges that she was subjected to a hostile work environment in retaliation for her protected activities. Compl. at 13. A hostile work environment exists where a plaintiff’s employer subjects her to “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Baloch, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21). In assessing whether a hostile work environment exists, courts “look[] to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550 F.3d at 1201 . “The Supreme Court has made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.” George v. Leavitt, 407 F.3d 405 , 416 (D.C. Cir. 2005) (internal quotation marks omitted). This prevents Title VII from becoming “a general civility code” that regulates “the ordinary tribulations of the workplace.” Faragher v. City of Boca Raton, 524 U.S. 775 , 787–88 (1998) (internal quotation marks omitted). To support her hostile work environment claim, Tumblin alleges that she experienced “heightened scrutiny of her work, interference with her work by Defendant’s management personnel, hostile conduct by Defendant’s supervisory employees as well as threats to Plaintiff’s career with Defendant.” Compl. ¶ 115. Her allegations of “hostile conduct” include incidents that occurred during two separate time periods. Between 2012 and 2015, supervisor Waddell treated Tumblin with “hostility” in their “personal interactions,” “regularly and repeatedly los[ing] her composure in her interactions with [Tumblin,] raising her voice and berating [Tumblin],” id. ¶ 39; Waddell marking Tumblin’s work as “QA Error” while not using that 10 designation with other employees, id. ¶ 40; Waddell “partially revok[ing]” Tumblin’s access to the “Audit System,” id. ¶ 41; another supervisor considering removing Tumblin from the unit because of the negative relationship with Waddell, id. ¶ 43; and another employee using profanity in the earshot of Tumblin despite Tumblin’s known aversion to profanity, id. ¶ 45. In 2018 and in 2019, Tumblin received a progress review of “successful” overall, id. ¶ 84; her various requests for special use of work time and time off were denied, id. ¶¶ 88, 91–92, 103; and her “return rate was manipulated,” as a March 14, 2019 document “included less ‘items worked’ than a March 7, 2019 document, id. ¶¶ 105–108. See Pl.’s Opp’n at 17–19 (describing these incidents). These allegations, taken as true and in the light most favorable to Tumblin, do not plausibly state a claim for “severe or pervasive” harassment. First, the factual allegations appear to involve discrete acts. “As a general matter, this jurisdiction frowns on plaintiffs who attempt to bootstrap their alleged discrete acts of retaliation into a broader hostile work environment claim.” Baloch, 517 F. Supp. 2d at 364; see also Baird v. Gotbaum, 792 F.3d 166 , 171 (D.C. Cir. 2015) (Baird II) (holding that “intermittent spats . . . spanning eight years and involving different people doing different things in different contexts” did not establish a hostile work environment). Indeed, “the constituent acts of a hostile-work-environment claim must be adequately linked to one another.” Baird II, 792 F.3d at 171. Tumblin’s allegations span seven years, include distinct time frames, and involve different actors. Compare Compl. ¶¶ 33–54 (describing incidents from 2012 through 2015 involving Nash, Waddell, and Gabriel Ford), with id. ¶¶ 84–105 (describing separate incidents in 2018 and 2019 with different actors). What is more, there is no apparent connection between most of these incidents. For example, there is no indication that the profanity incident, the ongoing tension with Waddell, and the later 11 performance review and requests for time off were in any way “linked to one another.” Baird II, 792 F.3d at 171. “The sheer volume of [Tumblin’s] allegations does not change” this deficiency. Id. at 172. Even considered together, these facts do not meet the requisite severity or pervasiveness to state a claim for a retaliatory hostile work environment. See Morgan, 536 U.S. at 117 (noting that the workplace must be permeated with “discriminatory intimidation, ridicule, and insult”). The alleged disagreements largely related to issues with Tumblin’s work product, were not physically threatening, and ultimately consisted of the kinds of “ordinary tribulations of the workplace” that fall outside the ambit of Title VII. Faragher, 524 U.S. at 787 ; see, e.g., Compl ¶¶ 40, 84, 105–108. “[C]ourts have been hesitant to find a claim for hostile work environment when a complaint contains no allegations of discriminatory or retaliatory intimidation, ridicule, or insult in the plaintiff’s day-to-day work environment and relies instead on incidents of allegedly discriminatory non-promotions and other performance-based actions.” Outlaw v. Johnson, 49 F. Supp. 3d 88 , 91 (D.D.C. 2014) (internal quotation marks omitted). Tumblin does allege that Waddell “regularly and repeatedly lost her composure in her interactions with [Tumblin,] raising her voice and berating” her. Compl. ¶ 39. But this allegation alone is insufficient to salvage Tumblin’s hostile work environment claim. For one, this circuit has explained that “occasional . . . lost tempers” and “workplace disagreements” are “the kind of conduct courts frequently deem uncognizable under Title VII.” Baird II, 792 F.3d at 171. For another, Tumblin does not allege sufficient factual detail to round out this allegation. She does not provide, for example, any detail about why, how frequently, or how severely Waddell berated her. See generally Compl. ¶¶ 38–41. In fact, Tumblin fails to allege any specific incidents of Waddell raising her voice. Id. Without further factual allegations, the Court 12 cannot conclude that Waddell’s behavior was anything more than an “occasional . . . lost temper[]” in “workplace disagreements.” Baird II, 792 F.3d at 171. Considered separately or together, the allegations in count I do not meet the requisite severity or pervasiveness to state a hostile work environment claim. See, e.g., Nurriddin v. Bolden, 674 F. Supp. 2d 64 , 93–94 (D.D.C. 2009) (plaintiff failed to state a claim for relief where his claim was based on allegations that management “passed over [the plaintiff] for performance awards, lowered his performance evaluations, unfairly reprimanded and criticized him, made disparaging remarks about his EEO complaints, closely scrutinized his work, . . . and engaged in a series of discussions to end his eligibility for workers’ compensation and to terminate his employment at NASA, before finally firing him” (internal quotation marks omitted)); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 , 68 (2006) (holding that “personality conflicts . . . are not actionable” under Title VII); Brooks v. Grundmann, 748 F.3d 1273 , 1277–78 (D.C. Cir. 2014) (“[T]he ordinary tribulations of the workplace, a series of petty insults, vindictive behavior, and angry recriminations . . . are not actionable under Title VII.” (internal quotation marks and citation omitted)). Accordingly, the Court declines to address the defendant’s causation argument, see Mot. to Dismiss at 18-19, and will dismiss count I of Tumblin’s complaint. 13  CONCLUSION For the foregoing reasons, the partial motion to dismiss is granted. An order consistent with this decision accompanies this memorandum opinion. ________________________ DABNEY L. FRIEDRICH United States District Judge December 3, 2020 14

2020-12-03 18:00:50.282083+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv3495-7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NUEVA SEAS AS, Plaintiff, V. Case No. 20-cv-3495 (RCL) USD 179,092, held by Truist Bank, XYZ CORPORATION, JOHN DOES 1-100, Defendants. MEMORANDUM OPINION On December 1, 2020, plaintiff Nueva Seas AS filed 4 complaint invoking the Court’s admiralty jurisdiction pursuant to 28 U.S.C. § 1333 . ECF No. 1; see Fed. R. Civ. P. 9(h). When it filed the complaint, plaintiff simultaneously filed three ex parte motions: (1) a motion for an order authorizing issuance of process of maritime attachment and garnishment pursuant to Supplemental Admiralty Rule B, ECF No. 3, (2) a motion for an order appointing a special process server for service of the process of maritime attachment and garnishment, ECF No. 5, and (3) a motion for a warrant of arrest pursuant to Supplemental Admiralty Rule D, ECF No. 4. First, the Court will GRANT IN PART and DENY IN PART plaintiff’s motion for an order authorizing issuance of process of maritime attachment and garnishment pursuant to Supplemental Admiralty Rule B, ECF No. 3. Because it finds that plaintiff’s verified complaint, | ECF No. 1, and affidavit, ECF No. 1-7, appear to meet the requirements set forth in Supplemental Admiralty Rule B, the Court will GRANT plaintiff's request that the Court authorize process of attachment and garnishment. See Supp. Admiralty Rule B(1)(b). Yet the Court will DENY plaintiff's request that the issuance of process of maritime attachment and garnishment be served via “facsimile transmission or other verifiable electronic means, including e-mail, to the garnishee.” ECF No. 3-1. Plaintiff cites no authority for the proposition that a garnishee may be served with process of maritime attachment and garnishment via verifiable electronic means. See generally ECF No. 3. Nor can the Court find any authority. Accorttingly, unless plaintiff can pot to some authority in the Federal Rules of Civil Procedure or Supplemental Admiralty Rules allowing for electronic service of the process of maritime attachment and garnishment, the Court will not allow such method of process. Second, although the Court will reject plaintiff's proposed method of serving process of maritime attachment and garnishment, it will appoint one of plaintiff's proposed servers of process. Pursuant to its authority under Supplemental Admiralty Rule B(1)(d)Gi), the Court will GRANT IN PART and DENY IN PART plaintiff's motion for an order appointing a ‘special process server for service of the process of maritime attachment and garnishment, ECF No. 5. The Court will GRANT plaintiff's motion to the extent it requests that the Court appoint a member of plaintiff's counsel’s firm, Chalos & Co., P.C., who is at least 18 years old and not a party to this suit as a special process server for service of the process of maritime attachment and garnishment, ECF No. 5. But it will DENY plaintiff's motion, ECF No. 5, to the extent plaintiff seeks to allow the Special Process Server to deliver to the garnishee a copy of the process of maritime attachment and garnishment and the Order of maritime attachment via “verifiable electronic means including but not limited to facsimile or e-mail.” ECF No. 5-1. For the reasons explained above, the Court cannot find, nor has plaintiff provided any authority supporting, service via electronic means under these circumstances. Finally, the Court will GRANT IN PART and DENY IN PART plaintiff's motion for a warrant of arrest pursuant to Supplemental Admiralty Rule D, ECF No. 4. It will GRANT plaintiff's motion to the extent plaintiffs ask this Court to authorize the warrant of arrest of the $179,092 held by Truist Bank (1369 Connecticut Ave NW, Washington, D.C. 20036). But it will DENY plaintiff's motion with respect to plaintiff's requested method of notice to any adverse parties. Supplemental Admiralty Rule D provides that “[i]n all actions for possession, partition, 39 66 and to try title . .. with respect to the possession of... . other maritime property,” “the process shall be by a warrant of arrest of the .. . other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties.” Rule B(2) in turn authorizes notice via any manner authorized in Federal Rule of Civil Procedure 4 or any form of mail requiring a return receipt. See Supp. Admiralty Rule B(2). Plaintiff proposes that it will “provide immediate notice of the arrest of the [$179,092 held by Truist Bank] as fast as practicable through electronic service (electronic mail and facsimile delivery).” ECF No. 4-1. Yet plaintiff has not met its burden of showing that Federal Rule of Civil Procedure 4 authorizes electronic service in this matter. Thus, unless plaintiff provides such authority to the Court, the Court cannot authorize electronic service of the warrant of arrest. For the reasons stated above, the Court will GRANT IN PART and DENY IN PART each of plaintiff's three motions, ECF Nos. 3, 4, & 5. Three separate Orders consistent with this Memorandum Opinion shall issue. Date: December .3 _, 2020 “Hu c- Fonte Ho yn. Royce C. Lamberth United States District Judge

2020-12-03 18:00:55.492192+00

http://cdn.ca9.uscourts.gov/datastore/bap/2020/12/03/Merritt Memo 20-1026.pdf

FILED DEC 2 2020 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT In re: BAP No. NC-20-1026-TFB SALMA MERRITT, Debtor. Bk. No. 19-51293 SALMA MERRITT; DAVID MERRITT, Appellants, v. MEMORANDUM* DEVIN DERHAM-BURK, Chapter 13 Trustee; SPECIALIZED LOAN SERVICING LLC; U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Cerificateholders of Bear Stearns Arm Trust, Mortgage Pass-Through Certificates, Series 2006-2, Appellees. Appeal from the United States Bankruptcy Court for the Northern District of California Stephen L. Johnson, Bankruptcy Judge, Presiding Before: TAYLOR, FARIS, and BRAND, Bankruptcy Judges. * This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1.  INTRODUCTION In her second chapter 131 case, debtor Salma Merritt failed to appropriately prosecute her case. The bankruptcy court dismissed it over her objection. And as this second bankruptcy case followed over a decade of other legal proceedings all seeking to avoid foreclosure on her home, the bankruptcy court also granted in rem relief from the automatic stay over her opposition. The record well supports these determinations and we AFFIRM. Ms. Merritt’s non-filing spouse also appealed. His standing to do so is questionable as to the case dismissal. But even if he has standing, his appeal is meritless. He did not oppose either in rem relief or case dismissal before the bankruptcy court; all his arguments are waived. FACTS2 In 2006, the Merritts borrowed $591,200 (the “Loan”) and secured their indebtedness by a deed of trust on their Sunnyvale, California home (the “Property”). U.S. Bank National Association, as Trustee for the Cerificateholders of Bear Stearns Arm Trust, Mortgage Pass-Through 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101 –1532. 2 We exercise our discretion to take judicial notice of documents electronically filed in the underlying bankruptcy case, the related adversary proceeding, Ms. Merritt’s prior bankruptcy case, and the district court cases and Ninth Circuit appeals referenced herein. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227 , 233 n.9 (9th Cir. BAP 2003). 2 Certificates, Series 2006-2 (“US Bank”) claims a beneficial interest in this trust deed through a 2011 assignment; Specialized Loan Servicing LLC (“SLS”) services the loan on US Bank’s behalf. Despite receiving a loan modification in 2009 (the “Modification”), the Merritts have not made a payment on the Loan since 2008; the arrearage exceeds $500,000. They avoided a resulting foreclosure through more than a decade of litigation against US Bank and its predecessors in interest. While the Merritts may have enjoyed interim victories on isolated points during the course of these cases, as the brief outline below establishes, they ultimately lost all litigation on all material issues: ! Merritt I: In 2009, the Merritts sued the original lender and others in the District Court for the Northern District of California (“District Court”). They alleged that the defendants defrauded them at loan origination and improperly refused their rescission request. In 2016, the District Court dismissed Merritt I with prejudice. The Ninth Circuit later affirmed, finding that the dismissal was appropriate given the claim preclusive effect of the judgment in Merritt II (discussed below) and other factors. ! Merritt II: Also in 2009, the Merritts sued the original lender and others in the Santa Clara Superior Court (“Superior Court”); they repeated the Merritt I allegations. In 2014, after contentious litigation that included fourteen interim appeals, the Superior Court granted the defendants’ motions for judgment on the pleadings. The Court of Appeal 3 affirmed this decision in 2019. ! Vexatious litigant determinations: In 2013, the Superior Court deemed the Merritts vexatious litigants in other litigation. At oral argument, the Merritts confirmed that, shortly before oral argument, they were deemed vexatious litigants in Merritt IV (discussed below). ! Merritt III: In 2017, the Merritts sued SLS, US Bank, and others in the District Court, re-asserting the fraud allegations at issue in Merritt I and Merritt II. During the course of Merritt III, the Merritts sought to enjoin foreclosure on the Property; the District Court denied this motion. They appealed the denial to the Ninth Circuit and also sought injunctive relief from the Circuit. The Ninth Circuit denied the motion and dismissed the appeal because the order challenged was not final. In August 2018, the Merritts dismissed Merritt III “without prejudice.” ! The first bankruptcy case: Immediately after the Ninth Circuit denied the Merritts’ motion for injunctive relief in Merritt III, Ms. Merritt filed a chapter 13 petition. The bankruptcy court dismissed the case due to numerous case prosecution and plan payment failures. ! Merritt IV: During Ms. Merritt’s first bankruptcy, the Merritts filed a Superior Court complaint against SLS, US Bank, and others. On at least seven separate occasions, they sought temporary restraining orders barring foreclosure against the Property; all were either denied or withdrawn. The Merritts appealed the denials and also sought a Court of 4 Appeal writ of supersedeas staying foreclosure. The Court of Appeal denied this request. ! The current bankruptcy case: The next day, Ms. Merritt filed her second chapter 13 case. Mr. Merritt later filed an adversary proceeding that challenged US Bank’s right to foreclosure. Ms. Merritt sought to extend the automatic stay, which was subject to termination after 30 days under § 362(c)(3)(A); the bankruptcy court denied the motion. She then sought a referral to the bankruptcy court’s Mortgage Modification Mediation Program (“MMM Program”) to obtain a stay to the extent necessary to facilitate the MMM Program. The bankruptcy court denied this motion as well. Thereafter, SLS and US Bank, pointing to the prior bankruptcy and the litigation history outlined above, sought in rem relief from the automatic stay under § 362(d)(4). Ms. Merritt, represented by counsel, filed an untimely opposition to the stay relief motion and argued that the bankruptcy court could not consider the extensive litigation history in determining whether the requisite scheme under § 362(d)(4) existed. Rather, she asserted, the bankruptcy court could only rely on the two bankruptcy cases. She posited that this limited review did not indicate such a scheme. After a hearing, the bankruptcy court took the matter under submission. Concurrent with the automatic stay battles, Ms. Merritt did little to 5 advance her chapter 13 case. She filed her bankruptcy schedules and chapter 13 plan only after the bankruptcy court issued an order providing for an automatic dismissal if she did not do so. And the plan she filed nearly a month into the case elicited from the chapter 13 trustee (“Trustee”): (1) a motion to dismiss based on her failure to make a plan payment; and (2) an objection to confirmation that raised fourteen significant plan or case prosecution problems. Ms. Merritt then belatedly made her first two plan payments but failed to address any of the Trustee’s plan objections. The Trustee then withdrew her dismissal motion but filed another objection to confirmation identifying two more compliance deficits. Ms. Merritt responded with an inadequate first amended plan; it resolved only two of the Trustee’s sixteen objections and created new problems. The Trustee again objected to confirmation. A month went by with no activity. Now four months into the case, the Trustee filed a motion to dismiss asserting that Ms. Merritt’s failures to resolve impediments to plan confirmation and to adequately prosecute the case were prejudicial to creditors and constituted cause for dismissal under § 1307(c)(1). Ms. Merritt then filed second and third amended plans; neither was confirmable. Thus, the Trustee filed a third amended objection to confirmation. Now over six months into the case, Ms. Merritt filed a fourth 6 amended, but still unconfirmable, plan. The Trustee again objected, noting that the plan left four of her objections unresolved and raised four new objections.3 While SLS and US Bank’s stay relief motion was under submission, the bankruptcy court held a hearing on the pending dismissal motion. It then took the matter under submission. On January 23, 2020, the bankruptcy court entered an order granting SLS and US Bank’s stay relief motion and the Trustee’s dismissal motion. On January 27, 2020, the bankruptcy court issued a second order again granting the stay relief motion. Ms. Merritt timely appealed the orders.4 Her husband also appealed. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(A) and (G). We have jurisdiction under 28 U.S.C. § 158 . 5 ISSUES Did the bankruptcy court abuse its discretion in granting 3 Three of the objections trailed from her original objection to confirmation. 4 The Merritts assert they are also appealing from the order denying their motion for referral to the MMM Program. But that appeal was not timely. We do not consider it further. Ramsey v. Ramsey (In re Ramsey), 612 F.2d 1220 , 1222 (9th Cir. 1980). 5 We note that, while we are affirming the dismissal order, the appeal regarding § 362(d)(4) relief is not moot because we have the power to grant effective relief notwithstanding the dismissal. See Jimenez v. ARCPE 1, LLP (In re Jimenez), 613 B.R. 537 , 544 (9th Cir. BAP 2020). 7 § 362(d)(4) relief? Did the bankruptcy court abuse its discretion in dismissing the bankruptcy case? STANDARD OF REVIEW A bankruptcy court’s orders dismissing a chapter 13 case and granting relief from the automatic stay are reviewed for an abuse of discretion. In re Jimenez, 613 B.R. at 543. To determine if the bankruptcy court has abused its discretion, we conduct a two-step inquiry: (1) we review de novo whether the bankruptcy court “identified the correct legal rule to apply to the relief requested;” and (2) if it did, we consider whether its application of the legal standard was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247 , 1261-62 & n.21 (9th Cir. 2009) (en banc). DISCUSSION A. Mr. Merritt’s Appeal Ms. Merritt and her non-filing spouse, David Merritt, both appealed the orders pro se. Mr. Merritt’s standing to do so, particularly in connection with the case dismissal order, is questionable. See Fondiller v. Robertson (In re Fondiller), 707 F.2d 441 , 442 (9th Cir. 1983) (“Only those persons who are directly and adversely affected pecuniarily by an order of the bankruptcy court have been held to have standing to appeal that order.”). But even if 8 he has standing, his appeal is meritless because he failed to oppose either in rem relief or case dismissal before the bankruptcy court; all his arguments on appeal are waived. Mano-Y & M, Ltd. v. Field (In re Mortg. Store, Inc.), 773 F.3d 990 , 998 (9th Cir. 2014). After being advised that Mr. Merritt intended to argue on the Merritts’ behalf, the Panel issued an order instructing him to address whether he is permitted to argue on behalf of Ms. Merritt as a nonattorney and whether he had standing on appeal. And at the start of oral argument, the Panel directed Mr. Merritt to argue solely on his own behalf. See 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”); Simon v. Hartford Life, Inc., 546 F.3d 661 , 664 (9th Cir. 2008) (“It is well established that the privilege to represent oneself pro se provided by § 1654 is personal to the litigant and does not extend to other parties or entities.”). Nevertheless, he did most of the appellants’ argument before ceding time to Ms. Merritt. Because Mr. Merritt waived any arguments on appeal, we summarily affirm the orders as to him. We now consider Ms. Merritt’s appeal. B. The Stay Relief Section 362(d)(4) provides in pertinent part that, on the request of a creditor whose claim is secured by an interest in real property, the 9 bankruptcy court shall grant stay relief with respect to acts against that real property where it finds the petition was filed as part of a scheme to delay, hinder, or defraud creditors that involved multiple bankruptcy filings affecting that real property. A § 362(d)(4) stay relief order is binding in all other bankruptcy cases filed within two years of the order’s entry if properly recorded. Alakozai v. Citizens Equity First Credit Union (In re Alakozai), 499 B.R. 698 , 703 (9th Cir. BAP 2013). Ms. Merritt contends that the bankruptcy court erred in granting in rem relief to SLS and US Bank because: (1) it improperly considered US Bank to be a secured creditor; (2) it considered evidence of the Merritts’ decade-long litigation history with US Bank and its predecessors in interest; (3) it considered allegedly false information related to the litigation history; and (4) it allegedly failed to consider that Ms. Merritt’s attorney had passed away during her first bankruptcy case. We address and reject these arguments in turn. 1. The bankruptcy court did not err in determining that SLS and US Bank had standing to prosecute the stay relief motion. Because Ms. Merritt is pro se,6 we liberally construe her brief. See Cruz v. Stein Strauss Tr. # 1361 (In re Cruz), 516 B.R. 594 , 604 (9th Cir. BAP 2014). She asserts that US Bank does not hold a valid secured claim. We 6 While unrepresented on appeal, Ms. Merritt had counsel at all relevant times before the bankruptcy court. 10 interpret her contention as a challenge to US Bank’s standing as a real party in interest entitled to seek relief from the automatic stay. In re Jimenez, 613 B.R. at 545. A movant is a “party in interest” entitled to seek stay relief if “it has a colorable claim to enforce a right against property of the estate.” Veal v. Am. Home Mortg. Servicing, Inc. (In re Veal), 450 B.R. 897 , 914-15 (9th Cir. BAP 2011). “Under California law, a trustee, mortgagee, beneficiary, or any of their agents or successors in interest can initiate nonjudicial foreclosure proceedings.” In re Jimenez, 613 B.R. at 545 (citing Debrunner v. Deutsche Bank Nat’l Tr. Co., 204 Cal. App. 4th 433 , 440-42 (2012); Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 1092 , 1099 (E.D. Cal. 2010)). US Bank evidenced its right to enforce the deed of trust on the Property through copies of the original deed of trust and an assignment granting it a beneficial interest in the deed of trust. These documents sufficiently establish its standing for purposes of a stay relief motion. On appeal, Ms. Merritt disputes US Bank’s standing based on an alleged rescission of the Loan or, alternatively, on the assertion that its predecessor in interest lost its foreclosure rights because its cross-complaint in Merritt II, seeking a declaration that the Modification was enforceable, constituted an action under California’s “one-action rule.” Cal. Code of Civ. Proc. § 726. But Ms. Merritt waived these arguments by failing to raise them in opposition to the stay relief motion. In re Mortg. Store, Inc., 773 F.3d 11 at 998. And, even if not waived, these arguments would be unavailing in a summary stay relief context. See In re Veal, 450 B.R. at 914 . The bankruptcy court would have correctly declined to decide their merits.7 2. The bankruptcy court properly considered the litigation history. As a party with standing, US Bank was entitled to stay relief under § 362(d)(4) if it established that Ms. Merritt’s bankruptcy filing was part of a scheme to delay, hinder, or defraud it that involved multiple bankruptcies affecting the Property. Courts have interpreted “scheme” in § 362(d)(4) to mean “an intentional artful plot or plan.” In re Jimenez, 613 B.R. at 545. Ms. Merritt claims that in determining whether the requisite scheme exists, the bankruptcy court erred by considering evidence of the Merritts’ extensive and unsuccessful litigation related to the Property. We disagree. By its plain language, the statute requires that the scheme “involve[]” multiple bankruptcies; it does not require that the scheme exclusively “consist of” multiple bankruptcies. And in this case, the Merritts’ conduct before, after, and during Ms. Merritt’s two bankruptcies demonstrates that the bankruptcies were 7 Ms. Merritt, thus, is free to raise the issues in her nonbankruptcy litigation to the extent appropriate, but we see no chance of success. The rescission arguments arise from a decade-old loan, and final judgments bar Ms. Merritt from asserting these claims. As to the one-action rule argument, Cal. Code of Civ. Proc. § 726 is inapplicable to the declaratory relief cross-complaint because it did not seek a personal money judgment on the note; it sought only a judicial determination that the 2009 Modification was enforceable. See Schubert v. Bank of N.Y. Mellon, 766 F. App’x 543, 546 (9th Cir. 2019); Walker v. Cmty. Bank, 10 Cal. 3d 729 , 732-34 (1974). 12 part of such a scheme. The Merritts’ multiple complaints allege substantially identical claims, the complaints and a multitude of related motions seek to absolve the Merritts from payment of the Loan and to avoid foreclosure, and all complaints and motions were ultimately unsuccessful in halting, as opposed to delaying, foreclosure. Thus, the record unambiguously supports the bankruptcy court’s determination that “[t]he unity of purpose across these cases shows an ‘intentional artful plot or plan’ to delay, or avoid entirely, secured creditors exercising their rights against the Property or [Ms. Merritt].” And once Ms. Merritt filed the second bankruptcy case, this scheme involved multiple bankruptcies affecting the Property.8 The record therefore thoroughly supports the bankruptcy court’s finding that Ms. Merritt’s bankruptcies were part of the Merritts’ larger strategy to stave off foreclosure against their home. 3. The record does not support that the bankruptcy court relied on false information related to the litigation history. Ms. Merritt claims that the bankruptcy court relied on “falsified” evidence related to the litigation history in granting stay relief. She supports this argument with an extensive factual narrative of her view of 8 “Multiple” is defined as “consisting of, including, or involving more than one” and was used by the bankruptcy court accordingly. See Merriam-Webster Online Dictionary, Multiple, http://www.merriamwebster.com/dictionary/multiple (last visited Nov. 10, 2020); In re Fung, No. CV 15-6245-DMG, 2016 WL 4267944 , at *4-5 (C.D. Cal. Aug. 10, 2016) (holding bankruptcy court did not err in finding a § 362(d)(4)(B) scheme involving two bankruptcies). 13 the litigation history. But this argument is waived. Ms. Merritt neither presented her counter-narrative in opposing the stay relief motion, nor did she argue before the bankruptcy court that SLS and US Bank were misrepresenting the record. In re Mortg. Store, Inc., 773 F.3d at 998; Graves v. Myrvang (In re Myrvang), 232 F.3d 1116 , 1119 n.1 (9th Cir. 2000). In any event, the record does not support her claims of misrepresentation. Specifically, she claims that SLS and US Bank misled the bankruptcy court by neglecting to advise that the Merritts were successful in some aspects of their lawsuits. But each minor interim success she identifies was followed by a dispositive loss on the merits. Thus, the record does not support that the bankruptcy court relied on “falsified” or materially incomplete evidence. 4. The bankruptcy court gave due consideration to the death of attorney Sagaria during Ms. Merritt’s first bankruptcy case. Nor has Ms. Merritt shown that the bankruptcy court failed to appropriately consider the death of her attorney, Scott Sagaria, during her first bankruptcy. Ms. Merritt argues that her first bankruptcy was not properly prosecuted because Mr. Sagaria suddenly died. She claims that she discovered his death after the Trustee filed objections to the confirmation of her plan and a dismissal motion. She posits that had his death been appropriately considered, the bankruptcy court would not have determined the bankruptcy was part of a scheme to delay, hinder or 14 defraud creditors. We disagree. First, the bankruptcy court presumably considered Mr. Sagaria’s death because it stated during the stay relief hearing that it had “read with interest” Ms. Merritt’s papers. This statement supports that the bankruptcy court considered all of her arguments. Nothing in the record suggests to the contrary. Further, the facts and circumstances of the first bankruptcy case in the record support that it served as a delay tactic rather than a legitimate attempt to reorganize and that Mr. Sagaria’s death had nothing to do with Ms. Merritt’s failure to reorganize. First, Ms. Merritt filed the first bankruptcy immediately after the Ninth Circuit denied the Merritts’ motion for injunctive relief. Second, none of Ms. Merritt’s filings in the bankruptcy were signed by Mr. Sagaria before his death; all such filings were signed and ECF-filed by other attorneys of Mr. Sagaria’s law firm. And third, even after Ms. Merritt discovered Mr. Sagaria’s death, she failed to prosecute her case in the month preceding its dismissal. For all the foregoing reasons, the bankruptcy court did not abuse its discretion in granting SLS and US Bank in rem stay relief. C. The Dismissal The bankruptcy court may either dismiss a chapter 13 case or convert 15 it to chapter 7 for cause. § 1307(c).9 “Cause” includes “unreasonable delay by the debtor that is prejudicial to creditors.” § 1307(c)(1). In that regard, “[a] debtor’s unjustified failure to expeditiously accomplish any task required either to propose or to confirm a chapter 13 plan may constitute [the required causation] under § 1307(c)(1).” Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904 , 915 (9th Cir. BAP 2011). The bankruptcy court found cause existed due to both unreasonable delay that is prejudicial to creditors and bad faith.10 We see no abuse of discretion in its finding that dismissal was appropriate. Regarding unreasonable delay, the bankruptcy court found that Ms. Merritt had made no serious attempt to correct many of the issues identified by the Trustee, including her failures to: (1) notify a secured creditor of the bankruptcy; (2) pledge all projected disposable income to paying unsecured creditors; and (3) include all pending lawsuits in her 9 Typically, § 1307(c) relief requires a two-step inquiry. Nelson v. Meyer (In re Nelson), 343 B.R. 671 , 675 (9th Cir. BAP 2006). Once cause is found, the bankruptcy court must decide between conversion and dismissal based on the best interests of the creditors and the estate. Id. Here, the bankruptcy court did not weigh the alternatives of dismissal and conversion, but any error was harmless because the record overwhelmingly shows that dismissal was in the best interests of creditors and the estate. 10 At oral argument, the Trustee relied exclusively on unreasonable delay as a basis for dismissal. Because the record supports that this was an adequate basis for dismissal, we too decline to further discuss bad faith except to note that we see no error in this regard. 16 schedules. It also found that her plan was internally inconsistent in the critical area of payment on the Loan. As Ms. Merritt had not addressed all confirmation objections seven months into the case but instead had repeatedly filed unconfirmable amended plans, the record supports the bankruptcy court’s logical conclusion that Ms. Merritt unreasonably delayed the case to the prejudice of her creditors. Based on the foregoing, the bankruptcy court did not abuse its discretion in finding cause existed to dismiss the chapter 13 case. CONCLUSION Based on the foregoing, we AFFIRM. 17

2020-12-03 18:01:31.910785+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0402-26-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 28, 2020 * * * * * * * * * * * * * * JOHN GOLD, on behalf of the * Estate of NORMA ANN GOLD, * * Petitioner, * No. 19-402V * Special Master Sanders v. * * Decision on Proffer; Damages; Influenza SECRETARY OF HEALTH * (“Flu”) Vaccine; Guillain-Barré AND HUMAN SERVICES, * Syndrome (“GBS”); Death. * Respondent. * * * * * * * * * * * * * * * Daniel H. Pfeifer, Pfeifer, Morgan & Stesiak, South Bend, IN, for Petitioner. Colleen C. Hartley, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On March 15, 2019, the Estate of Norma Ann Gold by its representative, John Gold, (“Petitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program (“Vaccine Program” or “the Program”).2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that the influenza vaccine Ms. Gold received on December 2, 2010, caused her to develop Guillain-Barré Syndrome (“GBS”). Pet. at 1, ECF No. 1. Petitioner further alleged that “Ms. Gold died as a consequence of the GBS she contracted due to the administration of the influenza vaccine.” Id. at 11. On April 27, 2020, Respondent filed a supplemental Rule 4(c) Report, in which he stated that, based on the record, Petitioner “has satisfied all legal prerequisites for compensation” under 1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 . 1 the Program. ECF No. 18 at 5. Therefore, Respondent concluded that “this case is appropriate for compensation[.]” Id. at 1 (emphasis in original). On July 31, 2020, the undersigned issued a Ruling on Entitlement consistent with Respondent’s Rule 4(c) Report. ECF No. 19. On September 8, 2020, Respondent filed a Proffer on Award of Compensation (“Proffer”). ECF No. 22. Based on the record as a whole, the undersigned finds that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the Proffer, attached as Appendix A, the undersigned awards Petitioner: A lump sum payment of $391,750.00, consisting of pain and suffering ($141,750.00) and the statutory death benefit ($250,000.00), which represents all elements of compensation to which [P]etitioner would be entitled under 42 U.S.C. §§ 300aa-15(a), in the form of a check payable to [P]etitioner as the legal representative of the Estate of Norma Ann Gold, deceased. Id. at 1-2. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of court SHALL ENTER JUDGMENT herewith.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) THE ESTATE OF NORMA ANN GOLD, ) by its Personal Representative JOHN GOLD, ) ) Petitioner, ) No. 19-402V ) Special Master Sanders v. ) ECF ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 15, 2019, the Estate of Norma Ann Gold by its Personal Representative John Gold (“petitioner”), filed a petition for vaccine injury compensation alleging that Ms. Gold suffered Guillain-Barre Syndrome (“GBS”) and death. On April 27, 2020, respondent conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. ECF 18. On July 31, 2020, Special Master Sanders issued a Ruling on Entitlement, incorporating respondent’s concession. ECF 19. The case is now in damages. I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded $391,750.00, consisting of pain and suffering ($141,750.00) and the statutory death benefit ($250,000.00), which represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. 1  II. Form of the Award The parties recommend that the compensation be provided to petitioner through a lump sum payment of $391,750.00 in the form of a check payable to petitioner as the legal representative of the Estate of Norma Ann Gold, deceased. 1 Petitioner agrees. Respectfully submitted, JEFFREY BOSSERT CLARK Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Colleen C. Hartley COLLEEN C. HARTLEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-3644 Fax: (202) 353-2988 DATED: September 8, 2020 1 John Gold has demonstrated that he is the legal representative of the Estate of Norma Ann Gold for the purposes of 42 U.S.C. § 300aa-11(b)(1)(A). See Petitioner’s Exhibit 2. 2

2020-12-03 18:02:24.830793+00

https://www.courts.ca.gov/opinions/nonpub/G058336.PDF

Filed 12/3/20 Squillacote v. Boval CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THERESE SQUILLACOTE, Plaintiff and Appellant, G058336 v. (Super. Ct. No. 30-2018-00978676) BRUNO ALAN BOVAL, OPINION Defendant and Respondent. Appeal from a judgment of the Superior Court of Orange County, Elizabeth Grace, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Therese Squillacote, in pro. per, for Plaintiff and Appellant. Kerendian & Associates, Inc., Shab D. Kerendian and Craig O. Cawlfield for Defendant and Respondent.  INTRODUCTION Appellant Therese Squillacote, proceeding in propria persona, sued respondent Bruno Alan Boval for various claims arising out of what she claims was botched dental implant work. She failed, however, to make a timely opposition to respondent’s motion for summary judgment and the trial court granted the motion. She argues that was error, but we cannot find fault with it. FACTS Appellant had dental implant work done at La Habra Dental Care. On March 5, 2018, she filed a form complaint naming respondent as defendant and alleging that he did business under the fictitious name “La Habra Dental.” The form complaint contained causes of action for breach of contract, common counts, and fraud. Appellant alleged she had paid in full for dental implants based on respondent’s promise that La Habra Dental Care would give her a “Hollywood Smile” and help her avoid future dental costs. Instead, she alleged, the implants had left her in pain and unable to properly eat. Respondent allegedly refused to address these issues. As a result, appellant suffered pain, humiliation, and embarrassment. In December 2018, respondent filed motions to compel certain basic written discovery including a motion to deem requests for admission (RFA’s) admitted. Among other things, the RFA’s asked appellant to admit she had no contract with respondent, he did not give her dental treatment and never promised to perform any such treatment. Appellant did not timely respond to the RFA’s, but instead e-mailed late responses to respondent’s counsel in October 2018. Her responses did not contain a separate verification, but she did include a statement under penalty of perjury and electronic signature. Respondent argued these responses were not verified. The trial court granted respondent’s motion and deemed the RFA’s admitted against appellant. Shortly after the order issued, respondent filed a motion seeking summary judgment, or alternatively, summary adjudication as to all three causes of action in the 2 complaint. He argued the allegations in the complaint against him were false, and to the extent appellant was alleging a claim for dental malpractice, her claim was also barred by the applicable statute of limitations. The main pieces of evidence supporting the motion were respondent’s declaration and a request for judicial notice of papers filed in connection with his motion to deem RFA’s admitted. In his declaration, respondent denied everything. He was not a dentist, he said, and he had never done business under the name La Habra Dental “or any variant thereof.” He was, however, the office manager at La Habra Dental Care from October 2010 to September 2014, and remembered meeting appellant on a few occasions in 2013 and 2014 to discuss her plan to have partial implants. The way respondent tells it, any conversations he had with appellant were purely in his administrative capacity as office manager and he made no personal promises to her. He says he never made representations about future consequences of getting the implants, and he did not enter into an agreement with her. He denied receiving any money from her and denied telling her she would get a “Hollywood Smile” by way of the procedure. He further denied creating any advertising about dental implants. He was unaware of anyone at La Habra Dental Care who had made the alleged representations to appellant, though he acknowledged she may have had a contract with the office, which he would have expected to be in writing. He understood appellant had undergone the partial dental implant procedure in October 2015, but by March 2017, he was no longer working at the office. Appellant did not timely respond to the motion. Instead, on the date of the hearing, she filed a declaration faulting counsel for failing to meet and confer with her and asking for latitude given her self-represented status. She did not submit any evidence opposing the motion, and she did not request a continuance of the hearing in order to do so. She appeared at the hearing but because there was no court reporter present, it is unclear what was said. 3  After taking the matter under submission, the trial court granted the motion, finding respondent’s declaration sufficient to meet his moving burden to negate critical elements of each of appellant’s claims. The trial court also granted respondent’s request for judicial notice as to the motion to deem RFA’s admitted. Almost a month after the ruling was issued, appellant filed an objection to the proposed judgment. This filing contained evidence and appears to be appellant’s untimely attempt to substantively oppose the motion for summary judgment. The trial court overruled the objections and entered judgment in favor of respondent. This timely appeal followed. DISCUSSION Our review of the trial court’s grant of summary judgment is de novo. (See Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 , 1142.) “Where, as here, the motion for summary judgment is unopposed, the moving party may still not be granted summary judgment unless his papers clearly establish that there is no triable issue of fact and he is entitled to judgment.” (Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607 , 613.) We are forced to conclude they do here. We start by addressing appellant’s apparent attempt to oppose the motion for summary judgment by way of documents filed just prior to the hearing or after the ruling had been made. The opposing party on summary judgment has only two options: file a timely response or make a timely request for continuance. (See Code Civ. Proc., § 437c, subds. (b)(2) & (h).) This is a legal requirement, but it is also common sense: when the other side wants to throw your case out of court you have to do something to stop it or ask for more time to do something to stop it. Appellant here did neither. Therefore, the trial court had broad discretion as to whether it chose to consider any late- filed paper. (See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 , 765.) There is nothing in this record to show the court abused that discretion. 4  Appellant spends considerable time in her brief arguing that, as a self- represented litigant, she was and is at a disadvantage. This is true, but it is something we can do little about. “A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200 , 1210 . . . .) Indeed, ‘“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.”’ (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113 , 1125–1126 . . . .)” (First American Title Co v. Mirzaian (2003) 108 Cal.App.4th 956 , 958, fn. 1.) Our courts have gone to great lengths to provide self-help centers and services for people who represent themselves, but we have to be fair not only to them, but to their opponents. Appellant’s complaint names “Bruno Boval (dba: La Habra Dental)” as the defendant. So it would appear respondent was sued insofar as he goes by the fictitious business name of La Habra Dental. Respondent denied doing business under the fictitious business name “La Habra Dental Care” or any version of that name. He averred that he was merely the office manager for that dental practice. So respondent demonstrated that he is not liable for the acts of the dental practice, and appellant failed to timely present any evidence to refute that showing. As a result, respondent could only be liable for his own individual wrongs, if any. So we go through appellant’s causes of action in parallel with respondent’s moving evidence to determine if any individual claims against respondent, Bruno Boval as an individual, remain viable, mindful that “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60 , 74.) In her breach of contract claim, appellant alleges she paid in full for dental implants and was told they would eliminate the need for future work and respondent refused to address the problems caused by the earlier work. The problem is that a breach 5 of contract claim cannot exist without an actual contract, and that contract must be supported by consideration to be enforceable. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394 , 402; Civ. Code, § 1550.) Respondent averred he was the office manager at the dental practice, so he never performed or agreed to perform any services for appellant and he never received any payment from her. As such, he met his moving burden to show the lack of an enforceable contract between himself and appellant. Appellant did not say anything different in the time she was given, nor did she ask for more time. The common counts cause of action is premised on respondent’s having received monies paid by appellant for the dental work. But again, respondent denies having received any money or having performed any work and there was no opposing evidence before the trial court showing he did. The only remaining claim is for fraud. Appellant alleges all three types of fraud – misrepresentation, concealment, and promissory fraud. As to the first and the third, she alleges respondent promised her implants would provide a “Hollywood Smile” and eliminate future dental costs and instead they only caused her pain. Respondent denies making any such promises, and again the court had nothing before it to establish anything different. As there can be no breach of contract without a contract, there can likewise be no intentional misrepresentation without a representation. We also question whether the “Hollywood Smile” statement is even actionable, as it would seem to be a statement which amounts only to puffery or sales talk. (See, e.g., Lathrop v. National Sugar Co. (1911) 16 Cal.App. 350 , 352-353 [defendant held not liable for statement that company’s sugar processing method was “the greatest invention in existence”].) As to the second and third, she alleges respondent “made further promises to repair, then ignored” her requests for help. Again, respondent denies having made these promises and, lacking opposition to respondent’s denial, the claims consequently 6 fail.1 In the absence of timely participation by appellant, the court did the only thing it could do. This is an unfortunate result. If appellant had actionable claims against La Habra Dental, the law favors their resolution on the merits. But we have no power to intercede when the trial court has handled the matter correctly, and we can find nothing incorrect here about granting an unopposed summary judgment motion. We can only lament appellant’s inability to find legal representation which might well have avoided this result. DISPOSITION The judgment is affirmed. Respondent to recover costs on appeal. BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J. 1 The concealment claim also fails because appellant never alleges that any information was actually concealed from her, or what such information was. 7

2020-12-03 18:02:25.294308+00

https://www.courts.ca.gov/opinions/nonpub/A156553.PDF

Filed 12/3/20 P. v. Young CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A156553 v. DEJUAN OMAR YOUNG, (Solano County Super. Ct. No. FCR330156) Defendant and Appellant. Defendant Dejuan Young was tried on multiple drug and weapon charges after the trial court denied his motion to suppress the narcotics, handgun, and ammunition that underpinned the charges. He was found guilty as charged and sentenced to nine years four months in prison. He appeals, contending his suppression motion was wrongly denied. We conclude otherwise and affirm. FACTUAL BACKGROUND Defendant was arrested in May 2017 after two Fairfield police detectives saw him engaging in behavior consistent with drug dealing and carrying a box that was subsequently found to contain methamphetamine, a firearm, and ammunition. Defendant moved to suppress the evidence, and his motion was considered concurrently with the preliminary hearing, at which the following testimony was given: 1  On the afternoon of May 9, 2017, Fairfield Police Detectives Keith Pulsipher and Amanda Graham were on patrol conducting “proactive enforcement” in the area of 101 Tabor Avenue in response to numerous complaints regarding drug dealing in the area. Pulsipher was aware of three such complaints, and Graham had personally received at least two complaints regarding that particular location. They were both wearing their “raid uniform” which consisted of a t-shirt emblazoned with the word “Police” on the front and both sleeves and a vest with a badge bearing the word “Police” and the detective’s name. They were driving a black patrol car that lacked external markings but had a light bar inside the passenger compartment in the front windshield. Pulsipher and Graham were well trained in identifying individuals dealing narcotics, having both completed an 80-hour narcotics investigators program offered by the California Commission on Peace Officer Standards and Training. Pulsipher was a member of the California Narcotics Officers Association and had attended its 24-hour annual training program the previous three years. He had also attended three or four different trainings specifically on methamphetamine and the sale of it, and had investigated an estimated 30 cases involving the sale of narcotics. Graham had attended three different California Narcotics Officers Association conferences, had made over 50 arrests for possession of methamphetamine for sale, and had testified more than 10 times as an expert on possession of methamphetamine for sale. As Pulsipher and Graham were patrolling on May 9, 2017, they drove past an apartment complex located at 101 Tabor Avenue. In front of the complex, they saw two individuals who were later identified as defendant and Lionel Gillespie. Gillespie was on the sidewalk and defendant was in a 2 parking lot close to the sidewalk. Gillespie appeared to be acting as a lookout, “kind of looking up and down the street monitoring traffic and kind of inspecting vehicles as they dr[o]ve by to see what nature of people were driving by the area,” while defendant was “kind of standing back a little bit more” until a vehicle approached, when he would walk up to the driver’s side. This behavior caught Pulsipher’s attention because often when selling narcotics as a group, “one person will act as a look-out, while the other person holds whatever substance is being sold, whatever type of narcotics is being sold, and when it’s clear, that person will approach to complete the transaction, whereas he’ll hand the narcotics, be it methamphetamine, be it marijuana, cocaine, what have you, to the purchaser, who will then hand them money . . . .” When Pulsipher and Graham drove by the 101 Tabor Avenue apartment complex a second time, an SUV had partially pulled into the parking lot in front. Gillespie was standing at the window of the vehicle and defendant was casually walking towards them carrying a black box, a pattern that in the detectives’ experience was consistent with drug sales. When defendant spotted the police car, he made eye contact with Graham and immediately put his hand in his front pants pocket and began walking towards a waist-high fence, “taking items out of his pocket and discarding them . . . .” Defendant then attempted to discard the black box by placing it behind the fence. As Graham described it, “[H]e’s crouching down towards this fence as he[’s] going towards it as if he was either going to put the box down or hide behind the fence.” After the detectives had driven about 20 yards past the apartment complex, defendant stood up with the box in his hands and began walking away from the direction the detectives were traveling. 3  Pulsipher turned the car around and parked in front of the apartment complex. He got out, started walking towards defendant, and shouted, “Get over here.” Defendant did not comply, instead walking towards the apartment complex. Pulsipher found this suspicious because defendant had attempted to discard the box and was ignoring the instructions of a uniformed police officer. Pulsipher continued to walk towards defendant and again instructed him to “Get over here.” Defendant still did not comply, and continued to move away from Pulsipher, who in turn picked up his speed and began jogging towards defendant, again commanding defendant to come towards him. As defendant approached a six-foot fence adjacent to the nearest apartment, he raised the box as if he were going to throw it over the fence. Pulsipher lunged at defendant and grabbed him, propelling the two of them into the fence. As he grabbed defendant, “the box went over the fence.” According to Pulsipher, “I couldn’t tell if he threw the box over the fence or if my contact with him caused the box to fall over the fence.” Defendant tried to pull away, so Pulsipher “took him to the ground” and eventually placed him in handcuffs despite defendant putting up a struggle. During the struggle, defendant said, “I live right here. I can show you my I.D.” Defendant was immediately searched, and items on his person were placed on the ground. Pulsipher walked him to the patrol car, placed him in the back seat, and returned to the spot where he had subdued defendant. While Pulsipher was escorting defendant to the patrol car, Graham went to the fence to retrieve the box. One of the boards in the fence had broken when Pulsipher and defendant collided with it, and she could see the box lying on the ground on the other side. She moved the board next to the broken board out of the way, entered the area behind the fence, retrieved the 4 box, came out, and placed the box with the items that had been removed from defendant. A few minutes after retrieving the black box, Graham opened it and found a handgun with nine live rounds in the magazine and a black, zippered case. Inside the zippered case was a silver cardboard jewelry box that contained six baggies of methamphetamine. Defense counsel played a video recording from Graham’s body camera, which indicated that approximately three minutes lapsed between when Pulsipher handcuffed defendant and when Graham opened the box.1 Another baggie of methamphetamine was recovered from the area where defendant was when he spotted the patrol car and appeared to be discarding something he had removed from his pocket. Defendant testified that he lived in an apartment at 101 Tabor Avenue and that the area behind the fence was a yard exclusive to his apartment. PROCEDURAL BACKGROUND Defendant was charged with multiple drug and weapon offenses following his May 9, 2017 arrest. On December 26, 2017, he filed a motion to suppress the evidence recovered during the incident. He asserted that the warrantless search of his yard and the black box were illegal because he had been unlawfully detained and had a reasonable expectation of privacy with respect to his yard where the box was recovered. In written opposition, the prosecutor argued that the detention, which occurred when Pulsipher made contact with defendant, was supported by reasonable suspicion, and defendant lacked standing to seek suppression of the box’s contents because he abandoned the box. 1 The video recording is not part of the record on appeal. 5  Defendant’s motion to suppress was considered concurrently with the preliminary hearing. After hearing the evidence and argument, the magistrate denied the motion. He first found there was reasonable suspicion to detain defendant because his and Gillespie’s conduct was consistent with a “go-between” and a “look-out” during a street-level drug sale, he attempted to evade the police, and he appeared to discard something upon seeing them. The magistrate further concluded that after defendant was detained, exigent circumstances justified Graham’s retrieval of the box from behind the fence because defendant “threw it over a fence” and “[h]e can’t abandon it but claim ownership of it at the same time.” According to the magistrate, “The defendant was trying to prevent the officers from accessing that, and under these circumstances, they had every right to go through the fence, to grab the box and open it.” The magistrate considered it inconsequential that Graham did not open the box immediately after retrieving it. On January 22, 2018, the Solano County District Attorney filed an information charging defendant with possession of methamphetamine with a firearm, possession of a firearm by a felon, unlawful possession of ammunition, and possession of methamphetamine for sale, the last count accompanied by a special allegation that defendant was personally armed with a firearm while possessing methamphetamine for sale. On May 22, defendant filed a renewed motion to suppress pursuant to Penal Code sections 859c and 1538.5, subdivision (i). He argued that the magistrate misapplied the law when he found a lawful detention because neither officer observed any “hand-to-hand transactions,” saw any objects or currency being exchanged, or conducted any follow up investigation of vehicles that were suspected to have been at the apartment building to purchase drugs. He also argued that the magistrate erred in finding that he 6 had abandoned the black box and that exigent circumstances justified the warrantless search of the black box. On June 5, defendant’s renewed suppression motion came on for hearing. Following argument, the court denied the motion. It ruled that defendant’s detention, which occurred when Pulsipher physically restrained him, was based on a reasonable suspicion that he was selling narcotics, to wit: The detectives received several complaints of drug activity in the area; they saw defendant engage in conduct that, based on their experience and training, was consistent with drug dealing; he acted evasively upon spotting the detectives in their identifiable law enforcement vehicle and appeared to discard something; he ignored all commands to walk towards Pulsipher; and he raised the box up as if he were going to throw it over the fence when he was confronted. The court also made the following findings: defendant “voluntarily discarded the box in the face of police observation and imminent lawful detention or arrest in order to avoid incrimination. He just abandoned it”; the search of the box could be justified as a search incident to arrest as the officers had probable cause for an arrest and Graham retrieved the box “about 30 seconds” after Pulsipher took defendant down and then searched the box about three minutes after defendant was handcuffed; and seizure of the box was justified under the exigent circumstances doctrine because the detectives were aware of complaints about drug activity in the area, they observed defendant engaging in what appeared to be drug deals, and it was reasonable for the detectives to believe the box contained “contraband pertinent to drug sales” and to retrieve it before someone else did because “there was no evidence they knew whose fenced-in area the defendant was throwing the box into.” 7  Defendant filed a petition for writ of mandate challenging denial of his suppression motion. We denied it on July 26, 2018. (No. A154624.) A jury trial resulted in guilty verdicts on all counts and a true finding on the firearm enhancement. Defendant was sentenced to nine years four months in prison. This timely appeal followed. DISCUSSION Standard of Review In People v. Hua (2008) 158 Cal.App.4th 1027 , 1033, the court summarized the standard of review applicable here: “Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, ‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]’ [Citation.] We affirm the trial court’s ruling if correct under any legal theory.” Defendant Was Legally Detained Defendant first argues that Pulsipher lacked probable cause to detain him. This argument fails, one reason being that it invokes the wrong standard. It is well established that a detention must be supported by reasonable suspicion that defendant is engaging in criminal activity, not, as 8 defendant articulates, by probable cause. Our Division Four colleagues recently discussed the reasonable suspicion standard: “A ‘brief, investigatory stop’ is justified where an officer has ‘reasonable, articulable suspicion that criminal activity is afoot,’ implicating the suspect. [Citations.] While the more demanding standard of probable cause requires a basis to suspect someone of having committed a particular crime, reasonable suspicion to detain only requires facts connecting the suspect to ‘criminal activity’ more generally. [Citation.] Like the probable cause determination, the applicable test courts use to assess reasonable suspicion is an objective one, specific to the detainee. [Citation.] “Our Supreme Court recently explained that ‘ “[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” [Citation.] Such reasonable suspicion cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area.’ [Citation.] Reasonable suspicion must rest on objective particulars tying a particular person to criminal activity, rather than on a mere ‘hunch’ that something is odd or unusual about the person detained.” (Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766 , 779–780; accord, Navarette v. California (2014) 572 U.S. 393 , 396–397; People v. Zaragoza (2016) 1 Cal.5th 21 , 56–57.) The record supports the conclusion that Pulsipher and Graham had a reasonable suspicion that defendant was selling narcotics. A detention occurs “ ‘ “when [a police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” ’ [Citation.] An officer must either ‘intentionally appl[y] hands-on, physical 9 restraint’ or ‘initiate a show of authority, to which the objectively reasonable innocent person would feel compelled to submit, and to which the suspect actually does submit for reasons solely attributable to the police show of authority.’ ” (In re J.G. (2014) 228 Cal.App.4th 402 , 409.) Given that a detention does not occur until “the person actually submits to the show of authority” (People v. Brown (2015) 61 Cal.4th 968 , 974), defendant was not detained until Pulsipher physically contacted him in front of the six-foot fence. At that point, the circumstances known to the detectives were these: They had received several complaints about drug dealing in the area, Pulsipher being aware of at least three such complaints, Graham having personally received two such complaints. Driving past 101 Tabor Avenue, they observed defendant and Gillespie acting in a manner consistent with drug dealing—Gillespie acting as a lookout and defendant going in to complete the sales from the contents of a black box he was carrying. When defendant spotted the patrol car driving by and made eye contact with Graham, he appeared to discard something from his pocket and walked to a waist-high fence behind which he appeared to place the box. After the detectives drove past the complex, defendant began walking away from the direction they were traveling. When the detectives parked in front of the 101 Tabor Avenue apartment complex, Pulsipher got out of the patrol car and directed defendant multiple times to “Get over here.” Defendant did not comply and instead walked away, approached the six-foot fence, and raised the box in an effort to toss it over the fence. These circumstances raised a reasonable suspicion that defendant was engaged in drug dealing and justified his detention. In arguing to the contrary, defendant primarily relies on three cases, none of which avails him. He claims People v. Casares (2016) 62 Cal.4th 808 10 held that “the fact a person is in an area known for criminal activity does not create reasonable suspicion, because that geographical fact is utterly unrelated to the individual suspect.” What Casares actually recognized is that “a subject’s presence in an area of expected criminal activity does not alone support a reasonable suspicion he or she is committing a crime.” (Id. at p. 838.) Defendant was not detained based merely on his presence in an area with prevalent drug dealing. Defendant next cites Cunha v. Superior Court (1970) 2 Cal.3d 352 , arguing that there “the High Court found no probable cause to arrest, even though there were stronger indications that the suspect was engaged in drug sales than there were in this case,” and that the Court “had misgivings about whether [the officers’] observations would support even the ‘reasonable suspicion’ standard.” In that case, the officers saw Cunha and a companion walking in an area where the officers had made numerous narcotics arrests. As the two were walking, they were looking around to see if anyone was watching. When they stopped, they both reached into their pants pockets, defendant removing what appeared to be money, his companion removing “an object,” and then placed their hands together in an apparent exchange. The officers arrested them both and immediately recovered balloons containing heroin from Cunha’s pocket. (Id. at pp. 354–355.) Our Supreme Court held that the search was not a lawful search incident to arrest because there was no probable cause for an arrest: “The instant arrest was predicated solely upon the officers’ observations that petitioner and his companion looked around as they walked on a public sidewalk in broad daylight, and apparently engaged in some sort of transaction in an area known for frequent narcotics traffic. Neither petitioner’s activities nor the location of his arrest provided probable cause 11 for arrest.” (People v. Cunha, supra, 2 Cal.3d at p. 357.) In dictum, the Court also observed that it had “some doubts” as to whether Cunha’s “activities were sufficient to justify a detention . . . .” (Id. at p. 356.) This case is inapposite as it involved probable cause for an arrest, which is not the issue here. And the dictum regarding “some doubts” as to the sufficiency of the circumstances to support a detention is neither binding nor persuasive, as the factors suggesting defendant was engaged in criminal activity here were more compelling than those in Cunha. The third case defendant cites—People v. Stanfill (1985) 170 Cal.App.3d 420 —also involved probable cause for an arrest and has no significance for that reason alone. Exigent Circumstances Justified Detective Graham’s Warrantless Entry into the Fenced-In Area and Seizure of the Black Box Defendant next argues that the trial court erred in finding that exigent circumstances justified Graham’s entry into his yard and her retrieval of the black box. We reject this claim. A warrantless entry into a private residence, including its curtilage, is presumptively unreasonable. (United States v. Dunn (1987) 480 U.S. 294 , 301 [curtilage is the area “intimately tied to the home” such as a detached garage or a fenced area immediately surrounding the home]; People v. Celis (2004) 33 Cal.4th 667 , 676.) “This presumption can be overcome by a showing of one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement.” (Celis, at p. 676.) One such exception is an exigent circumstance, defined as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263 , 276; accord, Kentucky v. 12 King (2011) 563 U.S. 452 , 460 [“[T]he need to ‘prevent the imminent destruction of evidence’ has long been recognized as a sufficient justification for a warrantless search”]; Minnesota v. Olson (1990) 495 U.S. 91 , 100; Celis, at p. 676.) “[T]he exigent circumstances test involves a two-step inquiry: first, factual questions as to what the officer knew or believed and what action he [or she] took in response; second, a legal question whether that action was reasonable under the circumstances.” (People v. Duncan (1986) 42 Cal.3d 91 , 97.) We need not reiterate the facts known to Pulsipher and Graham, as they are set forth in full above. It suffices to say that, given defendant’s behavior, the detectives reasonably believed the black box contained contraband related to drug dealing, and it landed in an area that, as far as they knew, was accessible to occupants of the apartment complex. The detectives had no way of knowing that access to the yard was exclusive to defendant’s apartment or, even if they had so known, whether there might be someone in the apartment that could take the box. Given all of these circumstances, it was reasonable for the detectives to believe there was an imminent danger of someone absconding with the box if they did not retrieve it. Graham Did Not Violate the Fourth Amendment When She Searched the Black Box Defendant next contends that even assuming there was an exigency to recover the box, there was no exigency requiring Graham to open it. He relies on People v. Pace (1979) 92 Cal.App.3d 199 to support his claim that once he was handcuffed in the police car and the detectives had the box in their exclusive control, there was no danger of him accessing a weapon or destroying evidence in the box, and thus the warrantless search of the box was unjustified. The magistrate found, however, that defendant abandoned 13 the box, and that finding is supported by substantial evidence. (See People v. Parson (2008) 44 Cal.4th 332 , 346 [court’s finding of abandonment must be upheld if supported by substantial evidence].) “It is well established that a search and seizure of abandoned property is not unlawful because no one has a reasonable expectation of privacy in property that has been abandoned. . . . [¶] It is, of course, well established that property is abandoned when a defendant voluntarily discards it in the face of police observation, or imminent lawful detention or arrest, to avoid incrimination.” (People v. Daggs (2005) 133 Cal.App.4th 361 , 365.) Abandonment rests on defendant’s objective manifestations of intent to abandon the properly. (Id. at p. 369.) Pulsipher’s testimony—that as defendant attempted to evade the detectives, he raised the box up to toss it over the fence, and the box went over the fence when Pulsipher made contact with him—supported the magistrate’s finding of abandonment. (See, e.g., People v. Brown (1990) 216 Cal.App.3d 1442 , 1451 [“defendant’s act of dropping the bag before making a last-ditch effort to evade the police supports the trial court’s finding that defendant indeed abandoned the paper bag and lost any reasonable expectation of privacy in its contents”].) Defendant objects that the record is “ambiguous as to precisely how the box ended up in the patio” of his apartment, but the record need not be definitive for there to be substantial evidence supporting the magistrate’s finding. “Substantial evidence is ‘evidence which is reasonable, credible, and of solid value.’ [Citation.] Put another way, ‘ “ ‘[s]ubstantial evidence’ means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” ’ ” (People v. Zorich (2020) 55 Cal.App.5th 881 , 886.) Such evidence exists here when one 14 considers Pulsipher’s testimony in the context of defendant’s attempt to evade the officer and flee with a box containing narcotics, a handgun, and ammunition. Defendant also argues that because the fenced-in yard area was exclusive to his apartment, he had a reasonable expectation of privacy in that area, and once the box was on his patio he had a reasonable expectation of privacy in the box as well. But, as noted, his subjective intent is irrelevant to the analysis, as abandonment rests on an objective manifestation of intent to relinquish an expectation of privacy in a particular object. (People v. Parson, supra, 44 Cal.4th at p. 346; People v. Daggs, supra, 133 Cal.App.4th at p. 369.) Defendant also seems to suggest that the abandonment doctrine only applies when an item is discarded in a public area, pointing in claimed support to the authorities on which the prosecutor relied to oppose the motion to suppress. (See California v. Greenwood (1988) 486 U.S. 35 , 37–41 [garbage bags left on the curb for city collection]; People v. Gallego (2010) 190 Cal.App.4th 388 , 396 [cigarette butt discarded on a public sidewalk]; People v. Siegenthaler (1972) 7 Cal.3d 465 , 470 [stolen property “abandoned on a sidewalk and in plain view”]; People v. Brown, supra, 216 Cal.App.3d at p. 446 [paper bag dropped in a dance hall].) While the cited cases indeed found abandonment in public areas, defendant cites no authority suggesting that abandonment must occur in a public area. Finally, defendant discusses People v. Pace, supra, 92 Cal.App.3d 199 , contending his situation was similar to that in Pace, where the court held that the warrantless search of Pace’s lunchbox violated the Fourth Amendment because he was handcuffed and in the patrol car and thus “had no access to it and could neither extract a weapon from it nor destroy any of 15 its contents.” (Id. at p. 204.) Pace has no applicability here in light of the supported finding that defendant abandoned the black box. DISPOSITION The judgment of conviction is affirmed. 16  _________________________ Richman, Acting P.J. We concur: _________________________ Stewart, J. _________________________ Miller, J. People v. Young (A156553) 17

2020-12-03 18:02:25.543747+00

https://www.courts.ca.gov/opinions/nonpub/A156690.PDF

Filed 12/3/20 P. v. Vidor CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A156690 v. MATTHEW JAMES VIDOR, (Sonoma County Super. Ct. No. CR668037) Defendant and Appellant. Appellant Matthew James Vidor was convicted by plea of carjacking, recklessly fleeing a police vehicle, and elder abuse. After his probation was terminated as unsuccessful, the trial court sentenced appellant to a term of 10 years eight months in prison, with credit for certain pretrial custody. On appeal, he challenges the court’s denial of 251 days of custody credits for time he spent in jail on an unrelated case in a different jurisdiction after he violated probation in this case. While the appeal was pending, appellant requested that we consider whether his conviction should be conditionally reversed and the matter remanded to the trial court for a determination of his eligibility for pretrial mental health diversion under Penal Code1 section 1001.36 and People v. Frahs (2020) 9 Cal.5th 618 . The Attorney General agrees that appellant meets the threshold requirements for conditional 1 All undesignated statutory references are to the Penal Code. 1 reversal. We affirm the trial court’s sentencing order and conditionally reverse and grant a limited remand for the purpose of determining appellant’s eligibility for mental health diversion under section 1001.36. FACTUAL AND PROCEDURAL BACKGROUND In July 2015, appellant was charged in Sonoma County with carjacking (Pen. Code, § 215, subd. (a)), count 1; fleeing a pursuing police vehicle while driving recklessly (Veh. Code, § 2800.2), count 2; and elder abuse (§ 368, subd. (b)(1)), count 3. The complaint further alleged that count one was a serious and violent felony pursuant to section 667.9, subdivision (a) because the victim was elderly. Four months earlier, the appellant had been sentenced by the San Francisco County Superior Court to serve 36 months of formal probation and 72 days in jail for vehicle theft (Veh. Code, § 10851, subd. (a)) and attempted carjacking (§§ 664/215, subd (a).) (People v. Vidor (Super. Ct. SF City and County, 2015, No. 223642.) Criminal proceedings in the underlying case were suspended from August 5, 2015 to December 11, 2015, while appellant was restored to competency. He ultimately entered an open plea to all charges in March 2016. On July 19, 2016, the trial court imposed and suspended a sentence of 10 years eight months, and placed appellant on formal probation for four years on the condition that he serve one year in county jail and enter the Jericho Project drug and alcohol treatment program (Jericho). The court awarded 349 days actual credit plus 348 days conduct credit plus 35 hospital days for a total of 732 presentence custody credits. On August 28, 2016, nine days after his admission, appellant was discharged from Jericho, reportedly due to his negative attitude and behavior and his failure to respond adequately to treatment. He did not contact the probation department and report his discharge, even though he had been 2 instructed to do so. On September 2, 2016, the Sonoma County trial court summarily revoked appellant’s probation and issued a warrant for his arrest. On April 25, 2017, a hearing was held on a request to clear appellant’s warrant from Sonoma County. The trial court was informed by appellant’s counsel that 23 days after he was discharged from Jericho, appellant was taken into custody in San Francisco on an arrest warrant that had issued after he failed to report to the San Francisco probation department. From the reporter’s transcript of that hearing, it appears that neither the trial court nor the Sonoma County probation department had previously been informed of appellant’s arrest. The court declined counsel’s request to clear the warrant and ordered appellant returned to Sonoma County. After serving 251 days in custody in San Francisco County jail, appellant was returned to Sonoma County on May 30, 2017. Appellant admitted his probation violation on July 17, 2017. On September 19, 2017, the trial court below terminated appellant’s probation as unsuccessful and executed the previously imposed sentence of 10 years eight months. The court awarded 493 days of credit for time served, which consisted of 349 days he previously accrued before being placed on probation in this matter, 31 days accrued while awaiting placement in Jericho, and 113 days in Sonoma County jail following his transfer from San Francisco. Appellant was also awarded 74 days of conduct credit pursuant to section 2933.1, subdivision (c), and 35 hospital days he had previously accrued for a total of 602 days of credit. Appellant filed a notice of appeal. In August 2018, appellant’s appellate counsel sent a letter to the trial court requesting that appellant be credited for the 251 days he spent in jail in San Francisco prior to his detention in Sonoma County. Counsel represented that appellant had been in custody in San Francisco “due to a Sonoma 3 County hold,” relying on the reporter’s transcript of the April 25, 2017 hearing. On September 27, 2018, we issued our opinion in People v. Vidor (Sept. 27, 2018, A152527 [nonpub. opn.]) (Vidor I). We remanded the case to the trial court to consider appellant’s custody credits, noting it was unclear what had triggered the reduction in conduct credits from the original sentence in July 2016 and the sentence imposed in September 2017. (Vidor I, supra, A152527.) As both sides here acknowledge, however, the trial court correctly reduced appellant’s conduct credits from 349 to 74 days when his prison sentence was reinstated in September 2017. We accept appellant’s concession on this point. Because appellant was sentenced to state prison for carjacking in violation of section 215, subdivision (a)—a violent felony listed in section 667.5, subdivision (c)(17)—his presentence conduct credits are limited under section 2933.1, subdivision (c) to 15 percent. (See People v. Arevalo (2018) 20 Cal.App.5th 821 , 827–830; People v. Daniels (2003) 106 Cal.App.4th 736 , 739–741; § 4019.) Following our remand, the trial court held a hearing on December 11, 2018 in which appellate counsel’s August 2018 letter and request for additional presentence credits was discussed. Because trial counsel did not have any pertinent documentation to support the request, the court put the matter over to February 2019 to allow additional time for trial counsel to consult with appellate counsel and provide evidence as to the status of the San Francisco case. At the February 15, 2019 hearing, trial counsel appeared without any documentation concerning the San Francisco matter. The trial court denied counsel’s request for 251 days of additional presentence credits, finding that appellant’s arrest in San Francisco was not based on the Sonoma County warrant and no evidence was provided that appellant’s custody in San Francisco was “dead time.” This appeal followed. 4  DISCUSSION There is no dispute that appellant’s September 2016 arrest in San Francisco was not based on the September 2016 Sonoma County arrest warrant. Nor do the parties dispute that he remained in custody in San Francisco for 251 days before being returned to Sonoma County. The question raised by this claim is whether appellant should receive presentence credit for the 251 days he served in San Francisco County jail. Because the facts regarding appellant’s actual time in custody are undisputed, his claim presents solely a question of law. Accordingly, we apply the de novo standard of review. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791 , 799; People v. Bravo (1990) 219 Cal.App.3d 729 , 732.) Below we address appellant’s request for conditional reversal and remand under section 1001.36. A. Applicable Legal Principles Section 2900.5, subdivision (a) provides, in pertinent part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, . . . shall be credited upon his or her term of imprisonment . . . .” However, subdivision (b) of section 2900.5 specifies that “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b), italics added.) As our Supreme Court explains, presentence custody stemming from unrelated incidents may not be credited against a subsequent incarceration if the charged conduct was not a cause of the earlier restraint. (People v. Bruner (1995) 9 Cal.4th 1178 , 1183 (Bruner).) The Bruner court held that “where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a 5 subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” (Id. at pp. 1193–1194.) The court reasoned that “[s]ection 2900.5 is not intended to bestow the windfall of duplicative credits against all terms or sentences that are separately imposed in multiple proceedings.” (Id. at p. 1191.) The Supreme Court later recognized an exception to Bruner’s strict causation rule in In re Marquez (2003) 30 Cal.4th 14 (Marquez). The defendant in Marquez was released on bail on a charge of burglary in Monterey County when he was arrested and charged in Santa Cruz County for an unrelated matter. During his detention, Monterey County placed a hold on his custody status. (Id. at p. 17.) After the defendant was convicted in both counties, he received presentence credit for time spent in jail in each county prior to sentencing. (Id. at p. 18.) The Santa Cruz County charges were later dismissed after that conviction was reversed on appeal. The defendant sought unsuccessfully to be awarded credit against his Monterey County sentence for time he spent in custody between the day he was sentenced in the Santa Cruz County case and the day he was sentenced in the Monterey County case. (Ibid.) The Supreme Court reversed. It found that once Monterey County placed its hold on the defendant, “his custody was attributable to the charges in both counties.” (Marquez, supra, 30 Cal.4th at p. 20.) Thus, once the charges were dismissed in Santa Cruz County, “all custody following Monterey County’s hold, including the period between petitioner’s sentencing in Santa Cruz County and his Monterey County sentencing, is properly characterized as ‘attributable to [the Monterey County] proceedings related to the same conduct for which the defendant has been convicted.’ ” (Ibid., quoting § 2900.5, subd. (b).) The court rejected the People’s argument that 6 the strict causation rule precluded this result, holding that the rule “is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant.” (Marquez, at p. 23.) There was no possibility of a duplicate custody credit award in Marquez because the Santa Cruz charges had been dismissed. (Ibid.) B. Appellant Is Not Entitled to Additional Presentence Credits Appellant argues that he is entitled to credit against his Sonoma County sentence for the 251 days of “dead time” he spent in custody in San Francisco. “[W]here a defendant’s presentence custody arises from conduct which is only partially attributable to the conduct for which he was convicted and sentenced, he has the burden of proving entitlement to credit therefor.” (In re Nickles (1991) 231 Cal.App.3d 415 , 417.) As we explain, appellant has not met his burden of establishing any entitlement to such credit. Appellant does not dispute that his arrest in San Francisco was unrelated to the Sonoma County arrest warrant. Nor can he, as the evidence is uncontested that the Sonoma County trial court and probation department were unaware of his detention until the April 25, 2017 hearing— approximately 217 days after his arrest. Appellant nevertheless argues that his custody is attributable to the Sonoma County proceedings because his public defenders in San Francisco spent some time trying to understand why he was rejected by Jericho and to find a better residential treatment placement for him. We fail to see how these circumstances make his custody attributable to the Sonoma County proceedings. There is no evidence that Sonoma County placed a custody hold on appellant while he was detained in San Francisco. Rather, appellant was arrested and jailed in San Francisco for violating the terms of his probation in his unrelated San Francisco case. But for his failure to comply with the terms of his probation in the San Francisco case, he would not have been in custody in San Francisco. Because 7 the Sonoma County offenses were not the cause of his 251-day incarceration in San Francisco, he is not entitled to credit for those days in this case. (§ 2900.5, subd. (b); Bruner, supra, 9 Cal.4th at pp. 1193–1194.) Appellant’s claim suffers from a second defect: no evidence has been presented that his San Francisco case was dismissed. Thus, the possibility remains on this record that an award of presentence credit in these proceedings may be duplicative of presentence credits awarded in the San Francisco case, a situation barred under section 2900.5, subdivision (b). It was appellant’s burden to demonstrate otherwise, and he failed to do so. Appellant argues that he was placed on felony probation in the San Francisco case in March 2015 and that a warrant had issued for his arrest after he failed to report to the probation department. A minute order reflects that on July 5, 2018, the San Francisco Superior Court recalled the bench warrant that had been issued on May 31, 2017 and terminated probation as unsuccessful. From this minute order, appellant contends that “the San Francisco case was dropped” and therefore appellant’s 251 days in custody constitutes “dead time” that should be credited against his Sonoma County sentence. No evidence supports the claim. While the record on appeal includes a copy of the San Francisco Superior Court’s minutes of the hearing in which appellant’s probation was terminated as unsuccessful, there is no reporter’s transcript. Apart from this single minute order, the record does not include any other documentation of the San Francisco case. There is some indication that appellant’s San Francisco case was not, in fact, dismissed. At the February 15, 2019 hearing, appellant’s trial counsel stated his “understanding” that appellant was “sentenced . . . on the San Francisco case before they sent him back here” but gave no explanation as to what sentence he received or what credits, if any, he was awarded. The trial court observed that it had afforded appellant three months to present 8 proof that his custody in San Francisco was attributable to the Sonoma County proceedings or that his San Francisco case had been dismissed. The trial court stated: “[I]f someone is going to get the credits that you are saying they are entitled to [him], you need to show me he’s entitled to them. . . . [I]t is all speculative. And I don’t have any information about San Francisco.” Appellant has provided no evidence that his 251 days in custody in San Francisco was “dead time” and has not demonstrated eligibility for additional presentence credits. Appellant’s reliance on Marquez and People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez) is misplaced. As discussed above, the Marquez court concluded that the defendant was entitled to presentence credits against his Monterey County sentence because of Monterey County’s custody hold and because there was no possibility that the defendant could be awarded duplicate credits once the Santa Cruz charges had been dismissed. (Marquez, supra, 30 Cal.4th at pp. 20, 23.) Neither of those factors appear in this record. Thus, the possibility remains that an award of additional presentence credits in this matter would bestow a windfall of duplicative credits against appellant’s sentences in both the Sonoma County and San Francisco proceedings. In Gonzalez, the defendant pleaded guilty to domestic violence and was placed on five years’ formal probation. (Gonzalez, supra, 138 Cal.App.4th at pp. 248–249.) During the probationary period, he was charged with auto theft and gun possession. (Id. at p. 249.) While in custody awaiting trial on the auto theft and gun charges, he was charged with assaulting another inmate. (Ibid.) The defendant was convicted of the auto theft and gun charges, pleaded no contest in the assault case, and admitted the probation violation. (Id. at pp. 249–250.) In awarding presentence credit, the trial court calculated the time served from the date of the defendant’s arrest in the 9 auto theft and gun case to the date of the assault, and allocated that credit to the domestic violence case, which was nearing completion. (Id. at p. 250.) The credit in the domestic violence case exceeded the sentence imposed in that case, leaving a certain amount of “dead time” credit. (Id. at p. 251.) The defendant argued, and the Court of Appeal agreed, that the credit could be applied to the auto theft and gun case even though it was not the sole reason for the presentence confinement. The court held that the custody could be attributed to “ ‘multiple, unrelated causes.’ ” (Gonzalez, supra, 138 Cal.App.4th at p. 252.) It reasoned that the prohibition in section 2900.5, subdivision (b) against duplicate credit would not be violated because the defendant did not seek duplicate credit for the period of confinement. (Gonzalez, at p. 252.) Gonzalez is inapposite because appellant has not negated the possibility that the 251 days he spent in custody in San Francisco will be (or already has been) applied to his San Francisco County case. Because he has not provided this court with sufficient proof to discount any risk of a “credit windfall” (Bruner, supra, 9 Cal.4th at p. 1193), we conclude he has failed to demonstrate his entitlement to the 251 days of custody credit in this case. C. Appellant Is Entitled to a Hearing on His Eligibility for Pretrial Mental Health Diversion After this appeal was fully briefed, we granted appellant’s requests to file a supplemental brief and motion requesting that we remand this matter to the trial court for a mental health pretrial diversion eligibility hearing under section 1001.36 and the Supreme Court’s recently issued opinion in Frahs, supra, 9 Cal.5th 618 . The Attorney General does not oppose this request. We agree that a conditional remand is appropriate. Effective June 27, 2018, “the Legislature enacted sections 1001.35 and 1001.36 as part of Assembly Bill No. 1810 (2017-2018 Reg. Sess.) . . . . 10 [Citation.] Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. (§ 1001.36, subd. (a).)” (Frahs, supra, 9 Cal.5th at p. 626.) “The stated purpose of the diversion statute ‘is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.’ (§ 1001.35, subds. (a)-(c).)” (Frahs, at p. 626.) Section 1001.36 defines “pretrial diversion” as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.” (§ 1001.36, subd. (c).) If a defendant is charged with a qualifying offense,2 a trial court may grant pretrial diversion if it finds all of the following: (a) the defendant suffers from a qualifying mental disorder; (b) the mental disorder was a significant factor in the commission of the charged offense; (c) in the opinion of a qualified mental health expert, the defendant’s symptoms will respond to mental health treatment; (d) the defendant consents to diversion and waives his or her right to a speedy trial; (e) the defendant agrees to comply with treatment as a condition of diversion; and (f) the defendant will not pose an 2A defendant may not be placed into a diversion program for the charged offenses of murder, manslaughter, use of a weapon of mass destruction, or certain enumerated sex offenses. (§ 1001.36, subd. (b)(2).) 11 unreasonable risk of danger to public safety if treated in the community. (Id., subd. (b)(1)(A)-(F).) If the six criteria in section 1001.36, subdivision (b)(1), are met, and if the trial court “is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant” (§ 1001.36., subd. (c)(1)(A)), the court may order diversion into an approved mental health treatment program for up to two years. (Id., subds. (c)(1) & (c)(3).) If the defendant commits an additional offense or otherwise performs unsatisfactorily in the diversion program, the court may reinstate the criminal proceedings. (Id., subd. (d).) “If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion,” and “the arrest upon which the diversion was based shall be deemed never to have occurred.” (Id., subd. (e).) In Frahs, supra, 9 Cal.5th 618 , the Supreme Court held that section 1001.36 “applies retroactively to cases in which the judgment is not yet final” (id. at p. 624) because section 1001.36 mitigates the possible punishment for a specific class of offenders with certain enumerated mental health conditions, and there is no clear contraindication of legislative intent for retroactive application. (Id. at pp. 630–637; see In re Estrada (1965) 63 Cal.2d 740 , 742–748 [an amendatory statute lessening punishment for a crime is presumptively retroactive, absent clear legislative intent for prospective application, and applies to all defendants whose judgments are not final at the time the statute becomes effective].) While appellant was originally sentenced in September 2017 — before the enactment of section 1001.36—the judgment was not yet final because his earlier appeal was pending before this court at the time the ameliorative 12 legislation went into effect. As the Supreme Court recently explained in People v. McKenzie (2020) 9 Cal.5th 40 , 46, “[i]n criminal actions, the terms ‘judgment’ and ‘ “sentence” ’ are generally considered ‘synonymous’ [citation], and there is no ‘judgment of conviction’ without a sentence.” Thus, in the context of Estrada retroactivity of an ameliorative statute, the relevant inquiry is whether the “ ‘ “criminal proceeding . . . ha[s] not yet reached final disposition in the highest court authorized to review it.” ’ ” (McKenzie, at p. 45 (italics added).) Since this matter has not been reduced to final judgment, appellant is entitled to the ameliorative provisions of section 1001.36.3 Turning to the merits, the parties agree that appellant has made a prima facie showing of eligibility for diversion under section 1001.36 by offering evidence of a qualifying mental disorder. We agree. As noted above, the trial court initially suspended criminal proceedings for four months over concerns that appellant was incompetent to stand trial. A psychiatrist was appointed to conduct a formal mental health evaluation. The psychiatrist found appellant incompetent, stating that he had a history of polysubstance abuse and may have major underlying mental health issues. The psychiatrist also noted that appellant was becoming increasingly delusional around the time of the offenses and was developing a fascination with taking cars. The record here affirmatively demonstrates that appellant appears to 3 Appellant has asked us to recall the remittitur issued on November 30, 2018 in his prior appeal (Vidor I, supra, A152527) in order to effectuate the conditional remand under section 1001.36. As we explain above, it is unnecessary for us to do so. While we had previously affirmed the conviction and remanded on a question of sentencing, our remittitur did not render his conviction “final” as separate from his sentence. The pendency of this appeal on a matter concerning his sentence makes this proceeding nonfinal for purposes of remand. 13 suffer from a qualifying mental disorder and that his underlying conviction may have been a consequence of that disorder. A conditional remand under Frahs is thus appropriate. DISPOSITION The trial court’s sentencing order is affirmed. We conditionally reverse appellant’s convictions and sentence and direct the trial court to conduct a hearing on appellant’s eligibility for mental health diversion under section 1001.36. If the court determines that appellant qualifies for pretrial mental health diversion, then it may grant diversion. If appellant successfully completes diversion, then the court shall dismiss the charges. If the court determines that appellant is ineligible for diversion or declines to exercise its discretion to grant diversion, or if appellant does not successfully complete diversion, the trial court shall reinstate the convictions and reimpose his prior sentence. 14  _________________________ Sanchez, J. WE CONCUR: _________________________ Margulies, Acting P. J. _________________________ Banke, J. A156690 People v. Vidor 15

2020-12-03 18:02:25.751738+00

https://www.courts.ca.gov/opinions/nonpub/C089665.PDF

Filed 12/3/20 P. v. Madsen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- THE PEOPLE, Plaintiff and Respondent, C089665 v. (Super. Ct. Nos. 44445, STK- CR-FE-1988-0001246) LEROY MADSEN, Defendant and Appellant. In 1989, a jury convicted defendant Leroy Madsen of second degree murder and unlawful taking or driving of a vehicle. The trial court sentenced him to 15 years to life for the murder, with a concurrent term of three years for the vehicle offense. In 2019, defendant filed a petition for resentencing under Penal Code section 1170.95.1 The petition asserted he is eligible for resentencing under that statute and requested appointment of counsel. The trial court summarily denied the petition and the request for counsel. 1 Undesignated statutory references are to the Penal Code. 1  Defendant now contends that under the procedure mandated by section 1170.95, the trial court should not have considered the record of conviction, should have appointed counsel for him, and should have afforded him a hearing.2 Finding no prejudicial error on this record, we will affirm the trial court’s orders. BACKGROUND In November 1989, a jury convicted defendant of second degree murder (§ 187) and unlawful taking or driving of a vehicle (Veh. Code, § 10851). The trial court sentenced defendant in April 1990 to a term of 15 years to life for the second degree murder, with a concurrent term of three years for the vehicle theft. “Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also permits, through new section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437’s changes to the definition of the crime.” (People v. Verdugo (2020) 44 Cal.App.5th 320 , 323, fn. omitted, review granted Mar. 18, 2020, S260493 (Verdugo).) On January 8, 2019, defendant filed a petition for resentencing under section 1170.95. He used a form on which he checked boxes indicating he met the requirements for resentencing. He also checked a box requesting appointment of counsel for the 2 The California Supreme Court has granted review of the following issues: “(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?” (Order granting review in People v. Lewis (2020) 43 Cal.App.5th 1128 , review granted Mar. 18, 2020, S260598 (Lewis).) 2 resentencing process. On May 3, 2019, the Public Defender filed a request to be appointed to represent defendant. On May 17, 2019, the trial court issued an order with an accompanying statement of decision summarily denying defendant’s petition for resentencing with no hearing. In the statement of decision, the trial court said defendant was convicted of second degree murder on a malice theory, not felony murder or the natural and probable consequences doctrine, and that there was sufficient evidence to support the malice theory. For facts, the trial court relied on this court’s opinion in defendant’s direct appeal. (People v. Madsen (Jan. 15, 1995, C008672) [nonpub. opn.].) The trial court also denied the requests from defendant and the Public Defender regarding appointment of counsel. DISCUSSION Defendant contends that under the procedure mandated by section 1170.95, the trial court should not have considered the record of conviction, should have appointed counsel for him, and should have afforded him a hearing. A Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating a petitioner’s eligibility for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330, review granted; accord People v. Torres (2020) 46 Cal.App.5th 1168 , 1177, review granted June 24, 2020, S262011.) First, the trial court determines whether the petition is facially sufficient under section 1170.95, subdivision (b)(2). (Verdugo, at pp. 327-328.) To do this, the trial court verifies that the petition contains the information required under section 1170.95, subdivision (b)(1), and supplies any missing information that can be “readily ascertained” from reliable, accessible information, including the record of conviction. (Verdugo, at pp. 328-330.) If the petition is facially sufficient, then, in the second step, the trial court determines under section 1170.95, subdivision (c) whether the petitioner has made “a prima facie showing that the petitioner falls within the provisions of this section.” 3 (§ 1170.95, subd. (c).) The Court of Appeal for the Second District, Division 7, has described this inquiry as “a preliminary review of statutory eligibility for resentencing, a concept that is a well-established part of the resentencing process under Propositions 36 and 47.” (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) “The court’s role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.” (Ibid.) In making this inquiry, the trial court may again examine “readily available portions of the record of conviction,” including “at least,” the “complaint, information or indictment filed against the petitioner; the verdict form or factual basis for a negotiated plea; and the abstract of judgment.” (Id. at pp. 323, 329-330.) The trial court may also consider jury instructions and any appellate opinion in the case. (Id. at p. 333.) If the trial court determines that the petitioner is not ineligible for relief as a matter of law, the evaluation of the petition proceeds to the third step, a “second prima facie review,” in which “the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties’ briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at pp. 328, 330, review granted.) In this second prima facie review, the trial court must take the petitioner’s factual allegations as true and make a preliminary assessment whether he or she would be entitled to relief if they were proved. (Id. at p. 328; see also People v. Drayton (2020) 47 Cal.App.5th 965 , 976 [in the second prima facie review, “the trial [court] considers whether the petitioner has made a prima facie showing of entitlement to (rather than eligibility for) relief”].) “If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170.95(a), then the trial court should issue an order to show cause. [Citation.] Once the trial court issues the order to show cause under section 1170.95(c), it must then conduct a hearing pursuant 4 to the procedures and burden of proof set out in section 1170.95, subd. (d) unless the parties waive the hearing or the petitioner’s entitlement to relief is established as a matter of law by the record. [Citation.] Notably, following the issuance of an order to show cause, the burden of proof will shift to the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (People v. Drayton, supra, 47 Cal.App.5th at pp. 980-981.) Both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) B On this record, the trial court did not commit prejudicial error during the second step of its review by considering the readily available portions of the record of conviction, including this court’s prior opinion, and in denying appointment of counsel and declining to set a hearing. As discussed above, a trial court properly considers the record of conviction when determining whether a defendant has made a prima facie showing of entitlement to resentencing. (Lewis, supra, 43 Cal.App.5th at pp. 1137-1139, review granted.) Therefore, the procedure employed in this case was consistent with the statute. We note that defendant does not attempt to argue he is entitled to resentencing under section 1170.95; he argues only that the trial court failed to follow the statutory procedure before denying the petition and defendant’s request for counsel. While we conclude the trial court properly followed the statutory procedure, which allowed the trial court to consider the record of conviction, we also note, as did the trial court, that the record of conviction establishes defendant was convicted of second degree murder on a malice theory. Therefore, he was not convicted under a felony murder theory or a natural and probable consequences theory, the only two theories that would entitle him to resentencing under section 1170.95, subdivision (a). Defendant was not entitled to appointment of counsel under section 1170.95, subdivision (c) because he did not make a prima facie showing that he falls within the 5 provisions of section 1170.95. (§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at pp. 332-333, review granted.) Therefore, defendant had no statutory right to counsel when his petition was denied. Defendant also argues the trial court’s ruling violated his state and federal constitutional rights to due process and the assistance of counsel. We disagree. “A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing.” (People v. Doolin (2009) 45 Cal.4th 390 , 453.) “ ‘ “The determination whether the hearing is a ‘critical stage’ requiring the provision of counsel depends . . . upon an analysis ‘whether potential substantial prejudice to defendant’s rights inheres in the [particular] confrontation and the ability of counsel to help avoid that prejudice.’ ” [Citation.]’ [Citation.] ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel.” ’ ” (People v. Rouse (2016) 245 Cal.App.4th 292 , 297 (Rouse).) Defendant relies primarily on Rouse for his constitutional argument. In Rouse, the court held that a defendant being resentenced under Proposition 47 is entitled to counsel because the resentencing is a critical stage in the adversarial proceedings. However, the court emphasized: “To be clear, we conclude the right attaches only at the resentencing stage. Whether the right to counsel attaches at an earlier stage of the petition, including the eligibility phase, was not before us and we therefore express no opinion on that issue.” (Rouse, supra, 245 Cal.App.4th at p. 301; see also People v. Washington (2018) 23 Cal.App.5th 948 , 957 [indicating right to counsel attaches at evidentiary hearing under Proposition 47].) The trial court’s role at step two of the section 1170.95 inquiry “is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) Because all factual inferences are drawn in favor of defendant, defendant is not 6 brought into confrontation with the state at step two, and appointment of counsel is not required at that step. (See Lewis, supra, 43 Cal.App.5th at p. 1138, review granted.) DISPOSITION The trial court orders summarily denying defendant’s petition for resentencing under section 1170.95 and denying his request for counsel are affirmed. /S/ MAURO, J. We concur: /S/ RAYE, P. J. /S/ BLEASE, J. 7

2020-12-03 18:02:25.998371+00

https://www.courts.ca.gov/opinions/nonpub/A155649M.PDF

Filed 12/2/20 P. v. Jones CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A155649 v. (San Mateo County JERMAINE JONES, Super. Ct. No. SC081953A) Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] BY THE COURT: It is ordered that the opinion filed herein on November 10, 2020, be modified as follows: 1. On page 5, the sentence beginning “Jones relies on cases . . .” and the citations that follow it are deleted and replaced with the following: Jones relies on capital cases holding that “[t]o comply with the Eighth Amendment, a state’s capital punishment scheme must include an ‘ “objective basis for distinguishing” ’ a capital case from a noncapital case. (People v. Crittenden (1994) 9 Cal.4th 83 , 154; see Godfrey v. Georgia (1980) 446 U.S. 420 , 433; People v. Casares (2016) 62 Cal.4th 808 , 848–853; People v. Catlin (2001) 26 Cal.4th 81 , 157–159.) 2. On pages 7 and 8, the following sentence is deleted: “But Jones has not asserted any void-for-vagueness claim under the due process clause.” That sentence is replaced with the following: 1  But Jones does not argue that section 190.2, subdivision (a)(21) is not “definite enough to provide a standard of conduct for those whose activities are proscribed,” or that it fails to “provide definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement,” as a void-for-vagueness claim under the due process clause requires. (People v. Heitzman (1994) 9 Cal.4th 189 , 199.) These modifications do not change the judgment. The petition for rehearing is denied. Dated: ____________________ _______________________, Acting P.J. 2 Filed 11/10/20 P. v. Jones CA1/2 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A155649 v. JERMAINE JONES, (San Mateo County Super. Ct. No. SC081953A) Defendant and Appellant. In August of 2011, Carl Purvis, Jr. was shot and killed while driving his car in East Menlo Park. A jury convicted defendant Jermaine Jones of first-degree murder, and found true the special circumstance that Jones intentionally murdered Purvis by shooting a firearm from a motor vehicle. Jones argues that the special circumstance finding must be reversed because it duplicated the prosecution’s theory of first-degree murder, and that the trial court erred in refusing to instruct the jury on imperfect self-defense, in admitting certain firearms evidence, and in limiting his counsel’s cross- examination of a prosecution witness. We affirm. BACKGROUND Around 2:00 a.m. on the morning of June 4, 2011, two masked men put a gun to Jones’s head, took his car keys, and stole his car—a red, four-door Chrysler with “comb rims.” Jones called 911 and told the dispatcher that he did not know the men, but asked police to check for the car on Alberni street 1 in East Palo Alto. Jones’s girlfriend at the time, Kimberly Brown, would later testify that Jones told her that Purvis (known as “Man Man”) was one of the carjackers, and a “hater” who “hat[ed] on [Jones] every time [Jones] went over to Alberni Street,” where Purvis lived. Later that morning, police recovered the car and returned it to Jones. On August 18, 2011, around 6:00 p.m., Jose Juan Lopez saw what he described as a “red candy”-colored Chrysler—which he later identified as Jones’s car—following a Pontiac Grand Am on Plumas Avenue in Menlo Park. A surveillance camera from a nearby house also captured Jones’s car following Purvis’s car. At around 5:55 p.m., Mariela Gonzalez saw Purvis’s car come to a stop at the intersection of Almanor Avenue and Newbridge Street. She then saw Jones’s car, driven by an African-American man with “little to no hair and a little heavier-set than the other driver,” pull up next to it. The driver of Jones’s car then fired two shots at Purvis’s car, and then Jones’s car “sped off really fast.” Purvis’s car stopped on the sidewalk in front a nearby church. Purvis was later pronounced dead at the scene. On the night of August 22, Jones’s car was towed from an address on Shropshire Court in Stockton, and released back to Jones the next day. On August 23, Stockton police conducted a stop of the car and arrested Jones for Purvis’s murder. Jones had two cell phones and a wallet on his person when he was arrested. An August 19 newspaper article about Purvis’s murder was subsequently found in the wallet. In a search of Jones’s car, a .45-caliber Springfield Armory XD45LE handgun was found under the hood and under the air filter. Analysis of the gun later determined that it had Jones’s fingerprints, palm print, and DNA 2 on it. Ballistic analysis also determined that the gun had fired bullets recovered from Purvis’s body, as well as the door and floorboard of his car. A data extraction from an HTC brand phone that Jones had when he was arrested produced several images of Jones holding what appeared to be the Springfield Armory XD45LE handgun, as well as various firearm related searches performed on August 16, including two related to a Springfield Armory XD45 handgun. On October 16, 2014, an amended indictment was filed charging Jones with the murder of Purvis (Pen. Code, § 187)1 (count 1), shooting at an occupied vehicle (§ 246) (count 2), and possessing a firearm as a felon (§ 29800, subd. (a)(1)) (count 3). With respect to count 1, the indictment further alleged the special circumstance that Jones intentionally murdered Purvis by shooting a firearm from a motor vehicle (§§ 190, subd. (d), 190.2, subd. (a)(21)) and that Jones personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The information also alleged a prior serious felony conviction (§§ 667, subd. (a), 1170.12, subd. (c)(1)), and three prior prison terms (§ 667.5, subd. (b)). Trial took place in February and March of 2018. The prosecution argued that Jones was guilty of first-degree murder under two theories—that he premeditated and deliberated before shooting Purvis, and that he committed the murder by shooting a firearm from a motor vehicle. (See § 189, subd. (a).) Jones testified in his own defense. According to Jones, a man named “Dollar” had previously expressed interest in buying his car, and on August 16, had offered to give him a gun and a large quantity of ecstasy pills in 1 Further undesignated statutory references are to the Penal Code. 3 exchange for the car, and had searched on Jones’s cell phone for the gun to see how much it was worth. On the day of the shooting, Dollar came to his door with the gun and Jones took pictures with it. Later that day, around 5:00 p.m., Jones went to the house of a man known as “Stag” and saw Dollar again; Dollar asked to test drive the car and was gone about 45 minutes. When he returned, he told Jones: “Me and that nigga whip it hard.[2] Just got on somebody.” Jones also introduced evidence, including the testimony of Menlo Park police officer Nicholas Douglas and a letter written by Brian Seefeldt, Wilbert Ard’s cellmate in jail, that Ard had confessed to Seefeldt that he had killed Purvis because Purvis betrayed the Taliban gang, to which they both belonged, and was going to inform the FBI about the gang’s plan to kill federal judges.3 On March 9, the jury found Jones guilty on all three counts and found true the firearm enhancement and drive-by special circumstance allegations. On August 31, the trial court found true the prior conviction allegations. On October 19, the trial court sentenced Jones to life without the possibility of parole on count 1, five years on count 2 which was imposed and stayed under section 654, and two years on count 3, doubled to four years as a second strike. The court imposed the 25 year to life section 12022.53, subdivision (d) enhancement on count 1 and stayed it on count 2, and The transcript reflects that Jones said “whip it hard,” but on cross- 2 examination Jones clarified that he said “Wilbert Ard.” 3Seefeldt was a witness for the defense, who testified he had suffered a head injury in 2007 that caused problems with his long-term memory and that he did not remember anything about many of the events in question. 4 imposed five years on the prior felony (§ 667, subd. (a)), for a total sentence of life without possibility of parole plus 34 years to life. Jones appeals. DISCUSSION Jones argues that (1) the special circumstance finding should be reversed because it duplicates the requirements for drive-by first-degree murder; (2) the trial court erred in failing to instruct on imperfect self- defense; (3) the trial court erred in admitting certain firearms evidence; (4) the trial court erred in prohibiting defense counsel from asking a prosecution witness if the victim had previously shot her brother; and (5) the cumulative effect of these errors requires reversal. I. The Eighth Amendment’s “Narrowing” Requirement Does Not Apply Because Jones Was Not Sentenced to Death Jones’s first argument is that the special circumstance finding must be reversed because it is requires the same elements as the prosecution’s drive- by theory of first-degree murder, and thus fails to satisfy the “narrowing” requirement of the Eighth Amendment. (See §§ 189, subd. (a), 190.2, subd. (a)(21); CALCRIM Nos. 521, 735.) Jones relies on cases holding that “[t]o comply with the Eighth Amendment, a state’s capital punishment scheme must include an ‘ “objective basis for distinguishing” ’ a capital case from a noncapital case. (People v. Crittenden (1994) 9 Cal.4th 83 , 154; see Godfrey v. Georgia (1980) 446 U.S. 420 , 433.) ‘A legislative definition lacking “some narrowing principle” to limit the class of persons eligible for the death penalty and having no objective basis for appellate review is deemed to be impermissibly vague under the Eighth Amendment.’ (People v. Bacigalupo (1993) 6 Cal.4th 457 , 465.)” (People v. Arce (2020) 47 Cal.App.5th 700 , 711.) 5  The Attorney General argues that Jones has waived his Eighth Amendment argument because he did not raise it before the trial court. However, because Jones also argues that his counsel was ineffective in failing to object to his sentence under the Eighth Amendment, we will reach—and reject—the argument on the merits. Indeed, as Jones acknowledges, his argument has already been rejected in People v. Rodriguez (1998) 66 Cal.App.4th 157 , 164 (Rodriguez): “Defendant initially suggests that section 190.2[, subdivision] (a)(21) contains a constitutional infirmity simply because it duplicates the elements which defined defendant’s murder as, or ‘elevated’ it to, first degree murder by way of the third category defined in section 189.[4] This suggestion, however, has already been decided to have no merit, and we therefore need not consider it further. (Lowenfield v. Phelps (1987) 484 U.S. 231 [, 246] [special circumstance of multiple murder may duplicate elements defining defendant’s crime as first degree murder]; People v. Edelbacher (1989) 47 Cal.3d 983 , 1023, fn. 12 [rejecting suggestion of similar argument regarding ‘lying in wait’ special circumstance].)” Jones acknowledges that Rodriguez, and the cases on which it relied, rejected his argument, but claims that Rodriguez is no longer valid on this point because in People v. Johnson (2016) 62 Cal.4th 600 (Johnson) our Supreme Court “held that a constitutional challenge to a special circumstance for a lack of ‘narrowing’ may be made in a LWOP case.” Johnson held no such thing. 4Section 189 provides, in relevant part: “[M]urder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.” 6  In Johnson, the jury convicted the defendant of lying-in-wait first- degree murder (§ 189, subd. (a)) and found true a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)), and the defendant was sentenced to death. (Id. at p. 607.) In concluding that defendant’s conviction did not violate the Eighth Amendment, the Johnson court discussed People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297 (Bradway), which held that the lying-in-wait special circumstance was not unconstitutionally vague. (Johnson, supra, 62 Cal.4th at p. 635; Bradway, supra, 105 Cal.App.4th at pp. 309–311.) Johnson included this footnote regarding Bradway: “Because Bradway was sentenced to life without the possibility of parole, rather than death, his constitutional challenge to the lying-in-wait special circumstance arose as a void-for-vagueness claim under the due process clause. (Bradway, supra, 105 Cal.App.4th at p. 309.) However, his vagueness challenge echoed the ‘specialized concept of vagueness most clearly defined by the [United States] Supreme Court in dealing with Eighth Amendment challenges to death penalties.’ (Bradway v. Cate (9th Cir. 2009) 588 F.3d 990 , 991.)” (Johnson, supra, 62 Cal.4th at p. 635, fn. 4.) Thus Johnson—which was a death penalty case—did not hold that an Eighth Amendment narrowing claim can be brought where the defendant receives a sentence of life without possibility of parole, but rather that such a claim takes the form of a void-for-vagueness claim under the due process clause. (See Bradway v. Cate, supra, 588 F.3d at p. 991 [“Bradway recognizes that he lacks standing for an Eighth Amendment death penalty challenge because he was not sentenced to death, see Houston v. Roe [(9th Cir. 1999)] 177 F.3d 901 , 907–908, so he presents his rather specialized vagueness challenge to California’s special circumstance under the Due Process Clause”].) But Jones has not asserted any void-for-vagueness claim under 7 the due process clause. Nor could he, because “[o]bjections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” (Maynard v. Cartwright (1988) 486 U.S. 356 , 361; see also Kolender v. Lawson (1983) 461 U.S. 352 , 357 [invalidating as vague a statute that did not “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”].) And the “conduct to which [section 190.2, subdivision (a)(21)] applies is not in doubt.” (Rodriguez, supra, 66 Cal.App.4th at p. 171.) In sum, Jones’s argument that the special circumstance finding violates the Eighth Amendment fails. II. The Trial Court Did Not Err in Failing to Instruct on Imperfect Self-Defense Jones next argues that the trial court erred in refusing his request that the jury be instructed on imperfect self-defense. Jones contends that the evidence supported such an instruction because he believed that Purvis was one of the men who stole his car on June 4, 2011, and because he believed Purvis was a member of the “Taliban gang,” and thus that he “would have been afraid of further armed attack by Purvis, when he saw Purvis’ car directly next to his.” “California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence,” which, in a murder prosecution, includes “the obligation to instruct on every supportable theory of the lesser included offense of voluntary manslaughter, not merely the theory or theories which have the strongest evidentiary support, or on which the defendant has openly relied.” (People v. Breverman (1998) 8  19 Cal.4th 142 , 149.) However, “ ‘[s]uch instructions are required only where there is “substantial evidence” from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense. [Citation.]’ ” (People v. Williams (2015) 61 Cal.4th 1244 , 1263.) On appeal, we review de novo the trial court’s decision not to give a particular instruction. (People v. Manriquez (2005) 37 Cal.4th 547 , 581, 584.) The requested jury instruction on imperfect self-defense—CALCRIM No. 571—provides that a killing that would otherwise be murder is reduced to voluntary manslaughter if the following elements are satisfied: “1. The defendant actually believed that (he/she/ [or] someone else/) was in imminent danger of being killed or suffering great bodily injury; “AND “2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; “BUT “3. At least one of those beliefs was unreasonable. “Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.” In this case, there is no substantial evidence of either the first or second element. The only direct evidence of Jones’s state of mind at the time of the shooting was his own testimony, and it was flatly inconsistent with self-defense, imperfect or otherwise. As noted, Jones testified that he let “Dollar” take his car for a test drive around the time of the shooting, and denied both having killed Purvis and having pulled the trigger of a gun on August 18, 2011. He also testified that he and Purvis “were never enemies,” and denied believing that Purvis was responsible for his June 2011 9 carjacking. Obviously, all of this is entirely inconsistent with Jones having killed Purvis in self-defense. Even if the jury did not believe Jones’s testimony, there is no other evidence that Jones believed that he was in imminent danger, and no evidence that Jones actually believed deadly force was necessary to defend against any such danger. That Jones believed Purvis had stolen his car two months prior was manifestly insufficient, because the imminent threat permitting one to act in self-defense or imperfect self-defense must be “ ‘immediate and present. . . . [O]ne that, from appearances, must be instantly dealt with.’ ” (People v. Aris (1989) 215 Cal.App.3d 1178 , 1187; accord, In re Christian S. (1994) 7 Cal.4th 768 , 783.) And even if Purvis was a member of a gang who normally carried a gun, there is no evidence that Jones had any knowledge of that fact, which would in any event have been insufficient to justify the instruction. (See People v. Manriquez, supra, 37 Cal.4th at p. 582 [evidence that victim usually carried a gun did not support imperfect self-defense instruction where “the record contains no evidence that defendant possessed a similar knowledge or belief”].) There was no error in declining to give the requested instruction on imperfect self- defense. III. The Trial Court Did Not Err in Admitting Certain Firearms Evidence Jones next argues that it was error to admit certain firearms evidence, invoking the rule that “it is generally error to admit evidence that the defendant possessed a weapon that could not have been the one used in the charged crime.” (People v. Sanchez (2019) 7 Cal.5th 14 , 55.) The reason is that “such evidence proves only that the defendant is in the habit of possessing a deadly weapon and is not probative on the issue of whether he 10 had possessed the particular weapon involved.” (People v. Gunder (2007) 151 Cal.App.4th 412 , 416; see People v. Riser (1956) 47 Cal.2d 566 , 577 [“When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons”].) As to the particular evidence here, Doretha Smith, with whom Jones lived for about a month around May of 2011, testified that Jones requested that she assist him in obtaining a 9-millimeter firearm around that time, and that she did so.5 Smith went on to testify that in late June 2011, Jones asked her via text message to purchase a .45-caliber handgun for him, but that she did not respond to that request. Jones also argues that it was error to admit People’s Exhibits 223 and 224, which were internet searches extracted from his cell phone and dated August 16, 2011, for various handguns, including a “Glock”-style handgun. Finally, Jones contends that it was error to admit People’s Exhibit 259, which 5 “Q Okay. With that in mind, was there an occasion earlier in 2011 when the Defendant asked you for assistance in purchasing a firearm? “A Yes. “Q Can you tell us what type of firearm it was? “A It was a 9-millimeter. “Q During that time, did you know someone that you could buy an illegal firearm from? “A Yes. “Q Did you, in fact, assist Mr. Jones to acquire that illegal 9-millimeter firearm? “A Yes. “Q Why? And I’m asking for your reason. “A Well, because it was also to be for security for the home, so I went ahead and helped purchase it.” 11 he characterizes as “a photograph found in [his] cell phone of an HTC brand handgun.” To begin with, these objections are forfeited because Jones did not raise them before the trial court. (See Evid. Code, § 353, subd. (a) [reversal for erroneous admission of evidence precluded unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion”]; People v. Williams (1998) 17 Cal.4th 148 , 161, fn. 6.) Jones’s counsel objected to the admission of this evidence on the grounds that its probative value was outweighed by prejudice, and lack of foundation, but did not raise the argument he now asserts on appeal. However, because Jones also argues that his counsel was ineffective in failing to raise this objection, we will consider the merits. With respect to the testimony of Smith and the searches for handguns from Jones’s cell phone, the rule of People v. Riser, supra, 47 Cal.2d 566 , does not apply, because this evidence clearly had probative value apart from showing that Jones was the “sort of person who carries deadly weapons.” (Id. at p. 577.) Given that the murder in this case was committed on August 18, 2011 with a .45-caliber handgun, evidence showing that Jones asked Smith in late June to purchase him just such a handgun was plainly relevant, and evidence of Smith’s previous purchase of a different handgun for Jones was relevant to explaining that request. And evidence that Jones was searching for various handguns on his phone two days before the murder was relevant to suggest that he ultimately obtained a gun and committed the murder, even if some of the guns searched for were ultimately not the murder weapon. In short, the rule of Riser does not apply here, because the evidence was probative of whether Jones ultimately possessed the murder weapon. 12 Accordingly, there was no error in admitting it. (See People v. Gunder, supra, 151 Cal.App.4th at p. 417 [“the extent to which evidence demonstrates criminal propensity is simply a factor to consider in assessing the prejudice from its admission; it is not a basis for exclusion unless the evidence otherwise lacks any probative value”].) With respect to People’s Exhibit 259, Jones’s argument appears to misrepresent the record. Inspector Matthew Broad, who performed a data extraction on Jones’s HTC brand cell phone, testified as follows regarding People’s Exhibit 259: “Q Okay. All right. So let’s, then, focus on the image, on these five, that you did find metadata on, you said it was People’s 211. Did you then create a one-page report for that particular image, including the metadata information you found? “A I did. “Q I’m handing you what has been marked as People’s Exhibit 259. Is this the one-page report containing the image and the metadata information? “A Yes. “Q Now, can you explain a little bit about what we see when we’re looking at People’s 259? “A So the top image is a thumbnail of the original image that is placed there for our benefit. Then below that, you see the file name, which was the name given to the image by the forensic software as it was being recovered, so it was a recovered image. It didn’t have a file name anymore. And then below is a bookmark comment, which includes text that I basically copied out and pasted in to be viewed. And this is the beginning of the file, so, for instance, the first—you just lost it.” 13  According to Menlo Park Officer David Apple, People’s Exhibit 211, the “original image” included in People’s Exhibit 259 in thumbnail form, depicted Jones holding a firearm which was similar to the murder weapon. Jones’s argument that the trial court erred in admitting People’s Exhibit 259 because it depicted Jones holding an “HTC brand handgun” that “could not have been used in the charged crime” does not accurately describe that exhibit. IV. The Trial Court Did Not Err in Preventing Defense Counsel from Asking Tatiana Harmon if Purvis Shot Her Brother Jones’s next argument is that the trial court erred in prohibiting his counsel from asking Tatiana Harmon—Purvis’s girlfriend, and the mother of his child—whether Purvis had previously shot her brother. This is the background: Outside the presence of the jury, defense counsel explained to the trial court: “I also indicated that given [Harmon’s] testimony, that she has indicated to the police that Man Man, on a prior occasion, had shot her brother, and I wanted to inquire as to that of the witness with respect to that line of questioning with regard to her testimony, and [the prosecutor] objected. Those would be my requests.” The trial court refused this request as “not relevant to the issues currently before the Court.” Jones argues that this testimony was relevant because it showed that “Purvis was a member of the firearms-wielding Taliban gang,” that members of that gang “often fired handguns at other persons in the East Palo Alto area,” and that Purvis “was the kind of person who would inform on his friends to the FBI,” and “was the type of untrustworthy person who would endanger his fellow-Taliban gang members by talking to the FBI about them.” 14  This claim fails, first, because Jones failed to make an offer of proof as to Harmon’s testimony. (See Evid. Code, § 354, subd. (a) [reversal based on exclusion of evidence requires that “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means”].) Jones concedes he made no such offer, but contends that one was not required because Harmon was a prosecution witness, and “[t]he evidence was sought by questions asked during cross-examination.” (Id., subd. (c).) However, “[t]his exception applies only to questions within the scope of the direct examination.” (People v. Hardy (2018) 5 Cal.5th 56 , 103.) On direct examination, Harmon testified regarding two conversations she had with Kimberly Brown regarding Purvis’s death, and an incident in which Purvis shot her brother was outside the scope of that direct examination, as Jones appears to concede on reply. In addition, any error in excluding this evidence was harmless because it is not reasonably probable that a more favorable result would have been reached absent the alleged error. (See People v. Watson (1956) 46 Cal.2d 818 , 837.) Jones contends that the fact that Purvis shot Harmon’s brother showed that Purvis was “violent and untrustworthy,” and thus “supported Ard’s explanation of his motive for killing Purvis,” that is, that Ard shot Purvis to punish him for informing on the Taliban gang to the FBI. But the evidence at trial already showed that Purvis was associated with the Taliban gang and suggested that he had committed an armed carjacking of Jones, with the prosecutor’s opening statement acknowledging that Purvis “was no angel” and was “associated with members of a criminal street gang known as the Taliban.” Evidence of a further incident in which Purvis shot his girlfriend’s brother—even had it been included in what was a eight-day trial featuring the testimony of dozens of witnesses—would have been cumulative to this 15 evidence and would not have created a reasonable probability of a more favorable result.6 V. There Was No Cumulative Error Jones’s final argument is that the cumulative effect of the errors he alleges require reversal. Since we have found no prejudicial error in any respect, this argument fails. (People v. Coryell (2003) 110 Cal.App.4th 1299 , 1309.) DISPOSITION The judgment is affirmed. 6 For the same reason, we reject Jones’s argument that this limitation on his cross-examination of Harmon was a violation of his rights under the confrontation clause. (See People v. Linton (2013) 56 Cal.4th 1146 , 1188 [“However, not every restriction on a defendant’s desired method of cross- examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross- examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance”].) 16  _________________________ Richman, Acting P.J. We concur: _________________________ Stewart, J. _________________________ Miller, J. People v. Jones (A155649) 17

2020-12-03 18:02:26.256679+00

https://www.courts.ca.gov/opinions/nonpub/D076479.PDF

Filed 12/3/20 Limon v. Dept. of Corrections and Rehabilitation CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA ALBERTO LIMON, D076479 Plaintiff and Appellant, v. (Super. Ct. No. 37-2018- 00029993-CU-OE-CTL) DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed. Laurence F. Haines for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper, and Elizabeth Vann, Deputy Attorneys General, for Defendant and Respondent. Alberto Limon, a former correctional officer employed by the California Department of Corrections and Rehabilitation (CDCR), photographed fellow officers, including some supervisors, sleeping on duty—some even with pillows. After Limon reported these officers to his supervisor, Captain Jose Badilla, a rat trap was placed on Limon’s seat; his name was scratched off his CDCR mailbox; and supervisors forced Limon to work several days in uniform, but without a gun and a baton to protect himself from prison inmates. Displeased with CDCR’s handling of the matter, Limon appeared on a television news program with 10 photographs of sleeping prison guards. The associate warden called the broadcast “an embarrassment” to the CDCR and to the unit Badilla supervises. CDCR reprimanded the sleeping officers with a temporary pay cut—but terminated Limon. CDCR fired Limon for “dishonestly” stating during an internal investigation that he reported all of the officers whose photographs were displayed on television, whereas Badilla told investigators that Limon had only reported three of them. In effect, Limon lost his 15-year law enforcement career because Badilla stated that he reported too few sleeping prison guards. Invoking the California Whistleblower Protection Act (the Act), Government Code1 section 8547 et seq., Limon sued CDCR for wrongful termination. The trial court granted CDCR’s motion for summary judgment after determining there was “no evidence” that CDCR’s stated reason for terminating Limon—officer dishonesty—was a pretext. We reverse because there is substantial evidence from which a jury could reasonably conclude that CDCR terminated Limon to retaliate for his reporting fellow officers sleeping on duty. 1 Undesignated statutory references are to the Government Code. 2  FACTUAL AND PROCEDURAL BACKGROUND2 A. Limon’s Employment History CDCR hired Limon as a correctional officer in 2000. From approximately 2009 to 2014, Limon worked at the Richard J. Donovan Correctional Facility (Donovan). In 2010, Limon reported that some Donovan officers were stealing inmates’ cash cards. In retaliation, Limon’s fellow officers shunned him and he was “ ‘fearful of being killed at any moment.’ ” In August 2014, Limon transferred from Donovan to the State Transportation Unit (STU). Limon’s duties included driving inmates in CDCR buses and vans. B. Limon Photographs and Reports Fellow Officers Sleeping on Duty There are ordinarily three officers on an STU bus: the driver, an officer in the front seat, and one in the back. On several occasions while driving, Limon saw the officer in the front seat asleep. Limon explained: “I would turn around and there would be this supervisor or the sergeant asleep, out cold, out cold, and this is while we’re transporting dangerous inmates.” Limon reported the sleeping sergeants to Badilla, who told him to photograph the sleeping officers.3 Between May and August 2015, Limon used his smartphone to photograph several STU officers asleep on duty in an 2 The historical facts are stated in the light most favorable to the nonmoving party—here, Limon. (Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640 , 647, fn. 3.) 3 Badilla contends he told Limon to “refrain from taking photographs or using an electronic device while driving.” However, on summary judgment, the facts are stated in the light most favorable to the appellant. See footnote 2, ante. 3 STU vehicle transporting prisoners. Before taking each photograph, Limon tried to awaken each of the officers but to no avail: “[Limon]: . . . I remember one of the other ones I even elbowed him, shoved him to wake him up. [¶] . . . [¶] I said, ‘Hey, you know, you’re snoring kind of. It’s too—it’s too much.’ It kept happening. You know, I’d tell him, ‘Wake up,’ and yeah, wake up. Ten minutes later, out again, you know.” Limon photographed nine officers sleeping on duty while transporting prisoners. Limon told CDCR internal affairs investigators that he gave all of these photographs to Badilla either by text, e-mail, or hand delivery. C. Retaliation Against Limon Limon believed that his reports to Badilla were confidential, and Badilla acknowledged that Limon confided in him. However, soon after Limon’s report to Badilla, fellow officers began retaliating: “[Limon]: . . . And the things that I would give to [Badilla], all of a sudden everybody knew about it, yet he was the only one I had given it to. How did they know about it? “Q: And what do you mean, an example . . . . “[Limon]: There was comments just being made. I was a rat. Comments being made about my photos.” Limon was shunned by fellow officers. A rat trap was placed on his bus seat and in his work mailbox. Limon’s name was scratched off his STU mailbox. An unofficial “ ‘Hurt Feelings Report’ ” referring to Limon as a “ ‘whimp’ ” was placed in his STU mailbox. The document contained areas to complete the “ ‘Whiner’s name, Date feelings were hurt and Name of the man or woman that hurt your sensitive feelings.’ ” When Limon showed that document to Lieutenant Pittman, the lieutenant laughed. 4  Limon’s supervisors also retaliated. For two days, Limon was forced to work in uniform, but without a gun or a baton. Limon complained about the harassment and retaliation to CDCR but “nothing [came] of his complaints.” On July 27, 2015, CDCR transferred Limon back to Donovan. Limon went on medical leave that day and never returned to work. D. Limon’s Television Interview In early May 2016, Limon filed a lawsuit against the CDCR, Badilla, Pittman, and others alleging whistleblower retaliation and related causes of action in a case entitled Limon v. CDCR et al. (Super. Ct. San Diego County, 2016, No. 37-2016-00015607-CU-OE-CTL, hereafter, Limon I). Limon’s attorney attached to the complaint several photographs of sleeping officers.4 On May 17, 2016, a San Diego television station discovered Limon’s lawsuit, and after contacting his attorney, the station interviewed Limon on its news program. On television, Limon stated he had been subjected to retaliation because he “ ‘did the right thing’ ” by reporting misconduct by fellow officers. The program displayed nine of Limon’s photographs showing correctional officers asleep on duty.5 Associate Warden Joseph Williams has supervisory oversight of the STU unit. He described Limon as “the type of employee who was always 4 According to CDCR’s attorneys, in April 2018 the trial court in Limon I granted defendants summary judgment, in part because Limon had failed to exhaust administrative remedies. The correctness of that judgment is not challenged here. Limon could not have alleged wrongful termination when he commenced Limon I because CDCR did not terminate his employment until more than a year later. 5 The television station “pixelated” the photographs to conceal the officers’ identity. 5 early . . . polite, and willing to assist.” Williams said the news program “was an embarrassment” to the Department and in particular to the STU. E. Internal Investigation of Limon Three days after Limon’s television appearance, Badilla authored a memorandum stating that Limon had only brought three of the nine photographs to his and another supervisor’s attention. As a result of Badilla’s memorandum, in June 2016 an assistant deputy director asked CDCR’s office of internal investigation to determine “whether [Limon] had failed to report the officers whose pictures were displayed during” the May 17, 2016 television interview. Limon told the internal affairs investigator that he provided all of the photographs to Badilla, some even by hand delivery “to keep things confidential and safe.” Badilla contradicted Limon’s account, stating that Limon had only given one of the photographs shown on television to him, plus two others not shown on television. F. CDCR Terminates Limon for Dishonesty In March 2017, internal affairs submitted its report to Warden Daniel Paramo. Paramo knew nothing of the investigation until the completed report was referred to him for disposition. Paramo believed Badilla’s statements that Limon had reported fewer than all of the officers whose photographs were shown on television. Accordingly, Paramo concluded that Limon provided “dishonest, evasive, and/or misleading information and responses to questions posed to him in that he claimed that prior to the termination of his assignment with the STU in 2015, [Limon] reported to Captain Badilla that he had observed [eight] Correctional Officers . . . sleeping on duty and had also provided Captain 6 Badilla with a copy of the photographs of these officers that were displayed during the broadcast of [Limon’s] television interview.” Using an “Employee Disciplinary Matrix” contained in CDCR’s operations manual, Paramo determined that the appropriate penalty for intentionally providing dishonest answers to an internal investigation is termination. In August 2017, CDCR terminated Limon’s employment on the grounds of (1) inexcusable neglect of duty; (2) dishonesty; (3) “[d]iscourteous treatment” of other employees; (4) willful disobedience; and (5) “[o]ther failure of good behavior” that “causes discredit to the appointing authority . . . .” In its “Notice of Adverse Action” (Notice), CDCR stated that Limon had knowingly violated CDCR policies and procedures by: • Initiating news media contact without prior approval; • Photographing officers without their prior consent; • Using his cellphone to “surreptitiously take photographs” of sleeping officers; • Failing to report to supervisors that STU staff were sleeping on duty; • Dishonestly claiming to have reported to Badilla that nine officers were sleeping; and • Inexcusably neglecting his duties by using a cellphone to photograph fellow STU workers sleeping on duty. G. Limon II and Motion for Summary Judgment In June 2018, Limon filed this action against CDCR alleging that his termination “was in direct retaliation for his reporting of health and safety violations . . . as well as his filing of a lawsuit against CDCR.” CDCR moved for summary judgment on the grounds that it terminated Limon’s employment for “legitimate, non-retaliatory reasons”—specifically, 7 that Limon “gave false statements to the CDCR’s Office of Internal Affairs during an investigatory interview.” Limon’s “false statements” occurred when he told investigators that he provided photographs to Badilla of the nine sleeping officers shown in the television news interview. Opposing the motion, Limon conceded that dishonesty may warrant termination; however, he asserted that he was truthful and CDCR’s conclusion that he lied is “drenched in retaliatory bias.” Limon also asserted that even if Paramo held no personal retaliatory animus, there was “institutional animus against any correctional officer who had the audacity to ‘rock the boat’ by reporting rule violation[s] and then making them public through lawsuits or the media.” As evidence of such motive, Limon pointed to the charge that he had photographed officers without their prior consent, which Limon characterized as “laughable.” Limon’s attorney asserted: “Presumably, [Limon] would have had to wake up each sleeping guard and get the guard’s permission (in writing of course) to photograph him and then take the photograph after he went back to sleep to avoid this reason for his termination.” Limon also asserted there was a triable issue that CDCR’s stated reasons for terminating his employment were pretextual, designed to cover up Badilla’s own mismanagement: “Captain Badilla’s [STU] was under immediate fire because he had allowed a lax operation wherein highly compensated state employees tasked with transporting dangerous criminals, routinely brought their pillows to work so they could sleep on the job. “Captain Badilla individually was exposed for having received numerous photographs and verbal reports of sleeping employees and then failed to follow up, a violation of CDCR policy. The truth is that if the [internal affairs] investigation tasked with investigating [Limon] had 8  concluded that [Limon] was telling the truth and Captain Badilla was lying, then Captain Badilla might very well be the one without the job. Captain Badilla had every incentive in the world to lie, whereas [Limon] did not.” H. The Court Grants Summary Judgment The court granted CDCR summary judgment, determining that CDCR “had legitimate non-retaliatory reasons for [Limon’s] termination.” The court ruled there was “no evidence” that CDCR terminated Limon “in retaliation for any whistleblowing acts” and no evidence “showing that the stated reason was untrue or pretextual.” DISCUSSION THE COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT BECAUSE THERE IS A TRIABLE ISSUE OF RETALIATION A. The Act The Act prohibits retaliation against state employees who “report waste, fraud, abuse of authority, violation of law, or threat to public health.” (§ 8547.1.) A protected disclosure under the Act is “ ‘a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity, or (2) a condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.’ ” (Levi v. Regents of University of California (2017) 15 Cal.App.5th 892 , 902.) B. Summary Judgment Shifting Burdens in a Retaliation Case When an employer seeks summary judgment on a retaliation claim, the employer “ ‘has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or 9 that the adverse employment action was based upon legitimate, [nonretaliatory] factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830 , 861.) “ ‘If the employer meets its initial burden, the burden shifts to the employee to “demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a [retaliatory] animus . . . .” ’ ” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568 , 577-578.) The central issue is whether the evidence as a whole supports a reasoned inference that the challenged action was the product of retaliatory animus. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75 , 94 (Light).) “ ‘[T]he inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork.’ ” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377 , 389.) C. The Standard of Review Our review is de novo. (Hedayatzadeh v. City of Del Mar (2020) 44 Cal.App.5th 555 , 561.) We view the evidence in the light most favorable to Limon as the losing party, and resolve any ambiguities in his favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 , 1142.) D. There is a Triable Issue of Retaliation Limon does not dispute that dishonesty by a police officer is a “facially valid” reason for termination. Accordingly, the correctness of the judgment turns on whether there is substantial evidence from which a jury could find either that the stated reason was pretextual or the circumstances “ ‘ “as a whole support[] a reasoned inference that the challenged action was the product of . . . retaliatory animus.” ’ ” (Light, supra, 14 Cal.App.5th at p. 94.) 10  “In responding to an employer’s showing of a legitimate reason for the complained-of action, a plaintiff cannot show merely that the employer’s decision was wrong, mistaken, or unwise. [Citation.] Rather, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence, and hence infer that the employer did not act for a nondiscriminatory reason.” (Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384 , 395.) There is sufficient evidence to create a triable issue that CDCR’s proffered reason for firing Limon was pretextual. The important backdrop of the case, which would be relevant to the jury’s evaluation of the proffered reason for dismissal, is what CDCR’s Operations Manual calls the “code of silence”—an unwritten rule that an officer does not report wrongdoing by fellow officers, and an officer who does will be subjected to retaliation.6 Limon claimed he had already experienced such retaliation at Donovan. After reporting that fellow officers were stealing cash cards from inmates, he was shunned by other officers and “ ‘fearful of being killed at any moment.’ ” And again, soon after reporting that officers were sleeping on duty, Limon’s fellow CDCR officers—including supervisors—retaliated by placing a rat trap on Limon’s seat, crossing out his name on his work mailbox, drafting a “ ‘Hurt Feelings Report’ ” naming him as complainant (about which a lieutenant laughed in Limon’s presence), and most significantly—forcing Limon to work for two days in uniform, but without a 6 See Parrish v. Solis (N.D. Cal. 2014) 2014 U.S. Dist. Lexis 158914 at *29 [noting that the “CDCR’s own documents described the ‘Code of Silence’ as a ‘conspiracy among staff to . . . retaliate against those employees who report wrongdoing’ ”].) 11 gun or baton to defend himself. Based on this evidence, Limon could reasonably argue that the message sent is that officers who report misconduct will be ostracized and made to fear for their own safety. Despite this evidence, the superior court determined there was “no evidence of any ‘institutional animus’ ” toward Limon. However, the evidence of retaliation summarized above supports a finding that CDCR officers and supervisors had a practice of retaliating against a whistleblower. The same evidence would also be sufficient to show that CDCR had failed to adequately train its officers not to retaliate against whistleblowers and/or that CDCR had failed to discipline those officers who retaliated against whistleblowers. Moreover, in determining there was “no evidence of any ‘animus,’ ” the superior court also overlooked that Badilla was already a named defendant in Limon I when Badilla drafted his memorandum that ultimately led to the internal investigation. That would give Badilla a motive to retaliate against Limon and exonerate himself from any responsibility for the officers’ sleeping on duty. By claiming that Limon never gave him the photographs shown on television, Badilla could accomplish both of these objectives. Further, Badilla “had the managerial responsibilities” for overseeing the STU. Limon publicly embarrassed Badilla on television and brought Badilla’s own management failure into sharp focus by showing that sleeping in Badilla’s unit was so accepted and institutionalized, some officers even brought pillows to work. Further, the evidence is reasonably susceptible of an inference that within 72 hours of that public embarrassment, Badilla retaliated against Limon by writing a memorandum that accused Limon of lying—setting up Limon for being terminated for dishonesty. Badilla was not only a moving force for the internal investigation that lead to Limon’s termination, but also 12 the chief witness against him. This evidence could support an inference of pretext or retaliation. Additionally, there is substantial evidence that Badilla intentionally disclosed Limon’s confidential communications to other officers, knowing and intending retaliation to result. Soon after Limon reported the sleeping guards to Badilla, STU officers retaliated against Limon, shunning him and calling him a “rat.” As Limon explained to investigators, only he and Badilla knew about the photographs. If other officers knew too, it could be only because Badilla told them. In light of past acts of retaliation against Limon at Donovan, a jury could reasonably conclude that Badilla intentionally betrayed Limon’s confidence, knowing and intending that retaliation result. Defending the summary judgment, CDCR asserts that Paramo alone determined to fire Limon, and Paramo based his decision on the internal investigation report and objective criteria in the disciplinary matrix. CDCR insists, therefore, that Paramo could not have had any animus against Limon and decided to terminate Limon “independent of Captain Badilla . . . .” However, Paramo had no personal knowledge of any relevant facts—he based his decision entirely on the contents of the internal affairs report. Paramo determined that Limon lied to investigators because Badilla “when interviewed, reported that Mr. Limon had only ever reported three officers . . . .” Far from being “independent” of Badilla, Paramo’s decision to terminate Limon was substantially, if not entirely, based on Badilla’s statements to internal affairs that portrayed Limon as a liar. To defeat the summary judgment motion, it was not necessary that Limon demonstrate that Paramo himself had retaliatory animus. Rather, showing that Badilla—a significant participant in the termination—exhibited retaliatory animus is enough to raise an inference that the employment 13 decision itself was in retaliation for Limon’s whistleblowing. The leading case for this approach is a decision authored by Judge Posner, Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398 . The Shager plaintiff, a fifty-year- old salesperson, claimed that he was fired because his supervisor was hostile to older workers. The supervisor did not personally fire the plaintiff; rather, a committee, unbiased and unaware of the supervisor’s prejudice, fired the plaintiff on the supervisor’s recommendation. In analyzing whether the supervisor’s motives could be imputed to the employer, the Court of Appeals looked to whether “the committee’s decision to fire [the plaintiff] was tainted by [the supervisor’s] prejudice.” (Id. at p. 405). The record established that the supervisor “not only set up [the plaintiff] to fail by assigning him an unpromising [sales] territory but influenced the committee’s deliberations by portraying [the plaintiff’s] performance to the committee in the worst possible light.” (Ibid.) Because the committee “acted as the conduit of [the supervisor’s] prejudice,” his prejudice could be imputed to the employer for liability purposes. (Ibid.) The Shager court colorfully stated that in effectuating the supervisor’s wrongful intent, the committee had acted as the “cat’s paw.” (Ibid.) California courts apply this same principle of imputed intent. After noting that all but one federal circuit had either adopted or approvingly referred to this doctrine, the appellate court in Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves) stated, “We have no doubt that California law will follow the overwhelming weight of federal authority and hold employers responsible where discriminatory or retaliatory actions by supervisory personnel bring about adverse employment actions through the instrumentality or conduit of other corporate actors who may be entirely innocent of discriminatory or retaliatory animus.” (Id. at p. 116; see also 14 DeJung v. Superior Court (2008) 169 Cal.App.4th 533 , 551 (DeJung) [“showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus”].)7 CDCR does not contend the cat’s paw doctrine is not a part of California law; rather, CDCR asserts the doctrine “has no applicability to this case” because “there was no evidence that Captain Badilla was motivated by retaliatory animus . . . .” However, as discussed ante, the evidence submitted on summary judgment creates a triable issue that Badilla was so motivated. Moreover, the underlying facts in Reeves, supra, 121 Cal.App.4th 95 are indistinguishable from the operative facts here. Reeves was a grocery store employee who complained to his store manager that fellow workers were sexually harassing female employees. (Id. at p. 100.) The store manager “seemed resentful and sought to ‘trivialize’ the complaints.” (Ibid.) A store manager sarcastically referred to Reeves as “ ‘Mr. Sexual Harassment.’ ” (Id. at p. 101.) Reeves was later accused of pushing a female coworker so he could reenter the store after business hours (his shift had just ended and he told the employee blocking his admittance that he urgently needed to use the bathroom). (Id. at pp. 101-102.) The store manager referred the pushing incident to store security for an investigation, knowing that all his prior referrals to security had resulted in terminations. (Id. at pp. 117-118.) Security conducted its investigation and recommended Reeves’s termination to a district manager who was otherwise uninvolved in the incident or 7 CDCR complains that Limon failed to raise the cat’s paw theory in the superior court. However, although Limon did not use the phrase “cat’s paw,” he adequately raised the issue by arguing that even if Paramo held no personal retaliatory animus, there was actionable “institutional animus.” 15 investigation. (Id. at p. 104.) The district manager terminated Reeves based on a conversation with the investigator. (Id. at pp. 104-105.) Reeves sued for retaliation, alleging he was terminated for complaining about sexual harassment of his female coworkers. (Id. at p. 105.) The trial court granted summary judgment for the employer, but the Court of Appeal reversed, explaining that although the district manager was unbiased, Reeves had presented sufficient evidence from which a jury could infer the store manager—who initiated and participated in the investigation—was motivated by retaliatory animus. (Id. at pp. 108-109.) Similarly here, although there is no evidence that Paramo himself had a retaliatory intent, Limon presented substantial evidence from which a jury could infer that Badilla, an employee in a supervisory capacity, was the driving force of the internal investigation, provided the chief evidence against Limon in that investigation, and did so to retaliate. CDCR also contends that the cat’s paw theory should not apply because Paramo “did not simply accept Captain Badilla’s version of events.” Rather, Paramo also considered the absence of evidence that could corroborate Limon’s version of events. However, the issue on appeal from the summary judgment is not whether Paramo had a reasonable basis for believing Badilla and disbelieving Limon. Rather, the pertinent question is whether there is substantial evidence that supervisory personnel steered the investigation to put Limon in the worst possible light. Additionally, an inference that an employer’s stated reason for an adverse employment decision is merely a pretext may arise where the employer has given implausible justifications for its action. (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666 , 677.) Although CDCR maintains on appeal that it terminated Limon only for his dishonesty, the 16 Notice includes several other grounds including “[d]iscourteous treatment” of fellow officers and “[i]nexcusable neglect of duty.” The charge of “[d]iscourteous treatment” apparently stems from the fact that Limon photographed sleeping officers without their prior consent. This justification for terminating Limon borders on the absurd. A CDCR policy prohibiting photographing employees could not have been intended to prohibit documenting serious dereliction of duty. The Notice also states that Limon “needlessly jeopardized the safety and security” of his fellow officers, inmate passengers, and public by taking photographs while operating a state vehicle and “senselessly subjected CDCR to potential liability for [his] actions.” This purported ground for termination is also troubling. Limon took several of the photographs from a parked vehicle. The background in some of the photographs was sharp and clear, indicating a “still shot.” And even with respect to the few photographs taken in a moving vehicle, CDCR does not and cannot explain how photographing prison guards sleeping aboard a bus transporting dangerous felons is a “senseless[]” act warranting the whistleblower’s termination. In sum, viewing the evidence in the light most favorable to Limon, there is a triable issue of material fact as to whether CDCR’s stated reason for Limon’s termination is pretextual or the product of retaliatory animus. 17  DISPOSITION The judgment is reversed. Limon is entitled to costs on appeal. GUERRERO, J. WE CONCUR: HALLER, Acting P. J. AARON, J. 18

2020-12-03 18:02:26.486183+00

https://www.courts.ca.gov/opinions/nonpub/F077308.PDF

Filed 12/3/20 Jackson v. Biter CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT FRED JACKSON, F077308 Plaintiff and Appellant, (Super. Ct. No. CV-281820) v. M.D. BITER, OPINION Defendant and Respondent. APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge. Fred Jackson, in pro. per, for Plaintiff and Appellant Xavier Becerra, Attorney General, Monica N. Anderson, Misha D. Igra, and Andrew M. Gibson, Deputy Attorneys General for Defendant and Respondent. -ooOoo-  Plaintiff appeals from the judgment entered against him after the trial court granted defendant’s motion for summary judgment. He also challenges the denial of his pretrial motions for court-appointed counsel, for a court-appointed expert witness, and for a physical examination by a medical expert. We conclude plaintiff has not established any prejudicial error in the trial court’s rulings, and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is a prison inmate, who is representing himself in this action. After two demurrers and an appeal, only one cause of action against one defendant remained in plaintiff’s first amended complaint. It alleged that defendant, the warden at Kern Valley State Prison (KVSP), was liable for injuries suffered by plaintiff, while he was an inmate at the prison, as a result of a dangerous condition of public property. The alleged dangerous condition was the presence of arsenic in the drinking water. Plaintiff alleged he was transferred to KVSP in August 2008, and, beginning in December 2012, he experienced white pigmentation spots on his skin as a result of the contaminated drinking water; additionally, he was later diagnosed with prostate cancer. In the course of litigation, plaintiff filed at least one motion for the court to appoint counsel to represent him, and at least four motions each for the court to appoint a medical expert and for it to order a physical examination by a medical expert. All were denied. Defendant filed a motion for summary judgment, supported by argument and evidence, including the opinion of a medical expert. Defendant argued that there was no dangerous condition at KVSP, because the level of arsenic in the drinking water was not harmful; it would take 20 years of exposure to much higher levels to cause injuries. The water met the standards in effect prior to 2006, when the federal authorities lowered the standard. Further, defendant’s medical expert opined the arsenic in the water was not a proximate cause of plaintiff’s claimed injuries. Defendant also argued the problem was reasonably remedied by construction of an arsenic removal plant, which took several years to plan, have approved by the state, and construct. Finally, defendant argued he 2 was immune from liability for discretionary decisions concerning how to resolve the problem of arsenic in the water. Plaintiff opposed the motion for summary judgment, arguing he was exposed to arsenic in the water for four or five years, he was at higher risk of injury than average, defendant’s expert did not have all of his medical records, and a document he presented indicated injury could occur from arsenic exposure in only three to seven years. Plaintiff did not offer expert opinion; he again asserted the need for appointment of an expert to provide an opinion regarding whether the level of arsenic in the water was dangerous and whether it proximately caused plaintiff’s claimed injuries. Plaintiff also suggested defendant should have provided high risk inmates bottled water until the arsenic removal plant was in operation. Plaintiff did not appear at the January 22, 2018 hearing of defendant’s motion for summary judgment, although the trial court had approved a telephonic appearance. The trial court trailed the matter to the end of the calendar to give plaintiff more time to appear, then granted the motion. In subsequent objections to defendant’s proposed formal order granting summary judgment, plaintiff asserted he was prevented from appearing at the hearing by a prison employee, who refused to wait and hung up before his appearance. Plaintiff appeals from the judgment.1 DISCUSSION I. Court-Appointed Counsel Plaintiff contends the trial court abused its discretion by denying his motion for appointment of counsel. A prisoner does not have a right to appointed counsel in a general civil case, such as this personal injury action. Prisoners possess a constitutional 1 Plaintiff’s December 3, 2018 request for judicial notice is denied. The document of which notice is requested is not relevant to the issues before the court in this appeal. (People v. Rowland (1992) 4 Cal.4th 238 , 268, fn. 6 (judicial notice cannot be taken of any matter that is irrelevant).) 3 right of access to the courts in civil matters. (Payne v. Superior Court (1976) 17 Cal.3d 908 , 914.) This right of access comes into existence only when a prisoner is indigent and is confronted with a bona fide legal action threatening his or her interests. (Id. at p. 924.) The establishment of the prisoner’s right of access does not mandate a particular remedy. (Id. at p. 923.) It entitles the prisoner to a meaningful opportunity to be heard; how that is achieved is to be determined by the exercise of discretion by the trial court. (Id. at p. 927.) “The exercise of the trial court’s discretion will not be overturned on appeal ‘unless it appears that there has been a miscarriage of justice.’” (Wantuch v. Davis (1995) 32 Cal.App.4th 786 , 794 (Wantuch).) Payne addressed an action in which an indigent prison inmate was named as a defendant in a civil action. (Payne, supra, 17 Cal.3d at p. 911.) Subsequent cases, including Wantuch and Apollo v. Gyaami (2008) 167 Cal.App.4th 1468 (Apollo), recognized that indigent prison inmates who were plaintiffs in civil actions also had a right of meaningful access to the courts. (Wantuch, supra, 32 Cal.App.4th at p. 792; Apollo, supra, at pp. 1482-1484.) Meaningful access to the courts is the keystone of an indigent prisoner’s right to prosecute bona fide civil actions; a prisoner may not compel the trial court to appoint counsel on his or her behalf. (Apollo, supra, at p. 1483.) Appointment of counsel will generally be used only as “‘a last alternative.’” (Apollo, supra, 167 Cal.App.4th at p. 1484.) “The right of an indigent prisoner to appointed counsel in a civil action arises only when there is a bona fide threat to his or her personal or property interests and no other feasible alternative exists.” (Wantuch, supra, 32 Cal.App.4th at p. 793.) Potential options for affording access to the courts, other than appointing counsel to appear for the prisoner, include: transporting the prisoner for personal appearances in court, deferring trial until the prisoner’s release if other parties will not be prejudiced, holding a portion of the trial at the prison, taking the prisoner’s deposition in lieu of a personal appearance, conducting proceedings by telephone, closed circuit television, or other electronic media, using declarations 4 submitted by the parties, and implementing other innovative, imaginative procedures. (Payne, supra, 17 Cal.3d at pp. 923-925; Wantuch, supra, 32 Cal.App.4th at pp. 792-793; Hoversten v. Superior Court (1999) 74 Cal.App.4th 636 , 644.) While the court has power to order appointment of counsel, in the absence of authorizing legislation, it lacks the power to order that appointed counsel be compensated for representing the prisoner. “In an appropriate case, and as a last alternative, appointment of counsel may be the only way to provide an incarcerated, indigent civil defendant with access to the courts for the protection of threatened personal and property rights. We again stress that access -- not the right to counsel -- is the keystone of the structure we built in Payne, and we point out once more that the power to appoint is independent of the power to compensate.” (Yarbrough v. Superior Court (1985) 39 Cal.3d 197 , 200.) Compelling an attorney to represent a civil litigant without compensation has been found to be a violation of the attorney’s right to equal protection of the law. (Cunningham v. Superior Court (1986) 177 Cal.App.3d 336 , 338, 347-352.) Plaintiff has not identified any statute or court rule authorizing payment for appointed counsel in his case. In support of his request for appointed counsel, plaintiff argues he is indigent (he qualified for a waiver of court fees and costs), he is incarcerated, and his case is complex. The issue is not his need or desire to have an attorney he cannot afford assist in the presentation of his case, but whether he has been afforded access to the court. The goal is to ensure his access is not impeded because he is incarcerated; it is not to give him an advantage that a similar unincarcerated litigant would not have. Plaintiff has filed and served numerous documents in this action, including two complaints, oppositions to demurrers, a motion for summary judgment, opposition to defendant’s motion for summary judgment, and motions for reconsideration. His papers present coherent argument, supported by citation of authority. The trial court authorized plaintiff to appear at hearings by telephone, and waived payment of the fee associated with telephone 5 appearances. Plaintiff pursued a prior appeal, obtaining a partial reversal of the judgment entered after defendants’ demurrer was sustained without leave to amend. Thus, despite the lack of an attorney, plaintiff has had ample access to the court. The right of access to the courts does not require that the state enable the prisoner to litigate effectively once in court. (Lewis v. Casey (1996) 518 U.S. 343 , 354.) It “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.” (Id. at p. 355.) Plaintiff argues that, if he had been able to appear at the January 22, 2018 hearing, he would have argued Government Code sections 68630 through 68641, and particularly Government Code section 68651, in support of his request for counsel. He asserts there was “a real possibility” the trial court would have appointed counsel for him if he had done so. There was no motion for appointment of counsel before the trial court on January 22, 2018, however. The only motion for appointment of counsel in the appellate record was filed on April 23, 2014, and was apparently denied on July 14, 2014. We conclude the trial court did not abuse its discretion in denying plaintiff’s request for appointment of counsel. II. Court-Appointed Expert Witness Plaintiff contends the trial court abused its discretion when it denied his motions for court appointment of an expert witness. In his motions, plaintiff asserted appointment of an expert was necessary to support his claims that his skin damage and prostate issue were caused by consumption of arsenic in the water; also, an expert was required because the issues presented by his case were beyond common experience and he needed to controvert the opinions of defendant’s expert. He now argues the motions should have been granted because he was an indigent prison inmate, he had already been granted a waiver of trial court fees and costs, and his case was complex, not an ordinary civil proceeding. 6  Plaintiff contends appointment of an expert was authorized by Evidence Code section 730, which provides in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.” This section gives the trial court discretion to appoint an expert on a party’s motion, it does not confer on a party an absolute right to have an expert appointed. (Laguna Salada Union Elementary School Dist. v. Pacific Dev. Co. (1953) 119 Cal.App.2d 470 , 474.) We review the trial court’s decision for abuse of discretion. (In re Marriage of E.U. & J.E. (2012) 212 Cal.App.4th 1377 , 1389.) The payment of court-appointed experts is addressed in Evidence Code section 731. Regarding experts appointed in civil actions, it states: “(b) In any county in which the superior court so provides, the compensation fixed under Section 730 for medical experts appointed for the court’s needs in civil actions shall be a charge against the court. In any county in which the board of supervisors so provides, the compensation fixed under Section 730 for medical experts appointed in civil actions, for purposes other than the court’s needs, shall be a charge against and paid out of the treasury of that county on order of the court. “(c) Except as otherwise provided in this section, in all civil actions, the compensation fixed under Section 730 shall, in the first instance, be apportioned and charged to the several parties in a proportion as the court may determine and may thereafter be taxed and allowed in like manner as other costs.” (Evid. Code, § 731, subds. (b), (c).) Plaintiff did not seek appointment of an expert for the court’s needs. Rather, he sought an expert to provide an opinion supportive of his claims against defendant, and to refute any expert opinions offered by defendant. Accordingly, under Evidence Code 7 section 731, subdivision (b), the compensation of the expert could be charged to the county only if the board of supervisors of the county provided for such compensation and if the trial court ordered it. Plaintiff has presented no evidence or authority demonstrating that, in Kern County, the board of supervisors has provided for payment out of the county treasury to appointed medical experts in civil cases. Under Evidence Code section 731, subdivision (c), the compensation of an appointed expert initially would be charged to one or more parties as determined by the court, subject to subsequent recovery as a cost by the prevailing party. Evidence Code section 731, subdivision (c), does not authorize the court to appoint an expert for a party at public expense. We conclude the trial court did not abuse its discretion in denying plaintiff’s motions for appointment of an expert witness at public expense. III. Court-Ordered Physical Examination Plaintiff contends the trial court abused its discretion when it denied his motions for a physical examination. The motions essentially sought the same relief as his motions for appointment of an expert witness: a medical expert to examine him and provide opinions regarding plaintiff’s physical condition and whether his skin pigmentation spots and prostate problems were caused by ingesting arsenic in the prison’s water. The motions were based primarily on Code of Civil Procedure section 2032.020.2 Section 2032.020 provides that a party may obtain discovery by means of a physical examination of a party to the action, an agent of a party, or a person in the custody or under the legal control of a party, when the person’s physical condition is in controversy in the action. Subsequent sections set out how the physical examination is to be implemented. Section 2032.220 provides that, “[i]n any case in which a plaintiff is 2 All further statutory references are to the Code of Civil Procedure, unless otherwise indicated. 8 seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff” by a physician, provided certain conditions are met. (§ 2032.220, subd. (a).) If the plaintiff refuses to comply with the demand, the defendant may move for an order compelling compliance. (§ 2032.250.) This procedure allows one party to an action to compel another party, or someone within the other party’s control, to submit to a physical examination by a doctor, when the examined person’s physical condition is in issue. It does not authorize the court to order a physical examination of a party by that party’s own medical expert at no cost to the party. Plaintiff cites various sections of the Evidence Code in support of his request. (Evid. Code, §§ 210, 351, 402, 403.) These address the definition and admissibility of relevant evidence, and establishing foundational and preliminary facts. They do not provide a basis for the trial court to order a physical examination of plaintiff. We conclude the trial court did not abuse its discretion by denying plaintiff’s motions for a physical examination, both because the cited statutes do not apply to the physical examination plaintiff sought and for the same reasons that it did not abuse its discretion by denying his motions for appointment of an expert. IV. Waiver of Fees for Expert Witness Plaintiff’s initial waiver of court fees and costs was granted. Plaintiff filed a subsequent request for a waiver of additional court fees and costs, which requested a waiver of “[f]ees for court-appointed experts.” The order on the second request indicated the court needed more information, and ordered plaintiff to appear on January 22, 2018 (the same date as the hearing of defendant’s motion for summary judgment), to provide that information. The court sought more information regarding the nature and cost of the expert witness, and the right of a litigant to have an expert witness appointed by the court. Plaintiff argues he was prevented by prison personnel from appearing at the January 22, 2018 hearing, despite the court’s order permitting him to appear by 9 telephone. He also asserts he was indigent, as established by the granting of his initial request for a fee waiver. “An appellant bears the burden to show not only that the trial court erred, but also that the error was prejudicial in that it resulted in a miscarriage of justice. [Citations.] An error is prejudicial and results in a miscarriage of justice only if the reviewing court concludes, based on its review of the entire record, that it is reasonably probable that the trial court would have reached a result more favorable to the appellant absent the error.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986 , 999 (Johnson).) The trial court set plaintiff’s request for an additional fee waiver for hearing and ordered plaintiff to appear. Plaintiff failed to appear. There is nothing in the record to indicate the court caused plaintiff’s failure to appear; plaintiff attributes it to actions of a prison employee. Even if there were some error by the trial court in ruling on the matter in plaintiff’s absence, plaintiff has not shown that any error was prejudicial. Plaintiff has not identified any facts or legal authorities that he would have presented, if he appeared at the January 22, 2018 hearing, that would have affected the trial court’s decision. Indigence and the need for expert testimony alone do not entitle a civil plaintiff to a waiver of fees for an expert witness, as discussed in part II above. Plaintiff has offered no additional facts demonstrating he was entitled to a waiver of the cost of an expert; he has not shown that the trial court would have been likely to have granted the waiver request if plaintiff had appeared at the hearing and informed it of those additional facts. Plaintiff also has not identified any legal authorities supporting his request for a fee waiver that he would have cited to the trial court if he had appeared at the hearing. We conclude plaintiff has not demonstrated any prejudicial error in the trial court’s denial of his request for an additional fee waiver. V. Denial of Hearing on Motion for Summary Judgment Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, 10 subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) Once the moving defendant has met his initial burden, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) On appeal, we apply the same analysis. (Torres v. Reardon (1992) 3 Cal.App.4th 831 , 836.) “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465 , 476.) Plaintiff contends he was denied a fair hearing on the motion for summary judgment because he was prevented from appearing and arguing his position. Initially, we reject plaintiff’s suggestion, which was based on Kern County Local Rule 2.62, that the trial court dismissed his action due to his failure to appear at the hearing. The judgment clearly stated it was based on the granting of defendant’s summary judgment motion; the order granting that motion found defendant met his burden of showing plaintiff could not prove an essential element of his cause of action, plaintiff did not raise a triable issue of material fact, and defendant was entitled to judgment as a matter of law. Thus, the judgment was based on the merits of the motion, not on plaintiff’s failure to appear at the hearing. An appellant must show both that the trial court erred, and that the error was prejudicial in that it resulted in a miscarriage of justice. (Jones, supra, 221 Cal.App.4th at p. 999.) Plaintiff presented his evidence in his opposition papers. Defendant objected to some of plaintiff’s evidence, and the objections were sustained. Plaintiff asserts in his brief that he did not timely receive defendant’s objections and was prevented from 11 responding to them because he was not allowed to appear at the hearing. He argues the trial court abused its discretion by sustaining the objections. Defendant’s objections were timely served and filed. The record indicates defendant served and filed written objections on January 17, 2018, along with his reply papers. He served the reply and objections by overnight courier. This complied with the requirement that “all written objections to evidence … in opposition to a motion for summary judgment … must be served and filed at the same time as the objecting party’s … reply papers are served and filed.” (Cal. Rules of Court, rule 3.1354.) It also complied with the requirement that reply papers be served and filed not less than five days before the hearing date, and be served by a means reasonably calculated to ensure delivery not later than the close of the next business day. (§§ 437c, subd. (b)(4); 1005, subd. (c).) Plaintiff has not addressed any of defendant’s objections in his briefs. He has not presented reasoned argument, supported by citation of legal authority, demonstrating that any of the objections lacked merit and should have been overruled. He also has not demonstrated prejudice. He has not shown that, if he had appeared at the hearing, the trial court likely would have overruled some or all of defendant’s objections and would have considered his evidence. Plaintiff also has not shown that, if the trial court had considered the excluded evidence, it is reasonably probable it would have reached a result more favorable to plaintiff. (Jones, supra, 221 Cal.App.4th at p. 999.) Plaintiff has not challenged the sufficiency of the evidence presented by defendant to meet defendant’s burden on motion for summary judgment. He attempts to argue that he presented evidence raising a triable issue of material fact, but he relies on evidence to which defendant’s objections were sustained. On appeal after summary judgment, we consider all the evidence set forth in the moving and opposition papers except that to which objections have been made and properly sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437 , 1451-1452.) Because plaintiff has not demonstrated defendant’s 12 objections were wrongly sustained, we cannot consider the evidence as to which the trial court sustained objections. Additionally, plaintiff has not shown that he presented any evidence raising a triable issue of fact regarding the element of causation of any of his claimed injuries. We conclude plaintiff has not demonstrated error by the trial court. DISPOSITION The judgment is affirmed. Defendant is entitled to his costs on appeal. SMITH, J. WE CONCUR: HILL, P.J. LEVY, J. 13

2020-12-03 18:02:26.676148+00

https://www.courts.ca.gov/opinions/nonpub/A160990.PDF

Filed 12/3/20 Anthony D. v. Superior Court CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE ANTHONY D., Petitioner, v. THE SUPERIOR COURT FOR THE A160990 CITY AND COUNTY OF SAN FRANCISCO, (San Francisco City & County Super. Ct. No. JD19-3169) Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest. MEMORANDUM OPINION1 Anthony D. (father) petitions this court for extraordinary writ review of a juvenile court order setting a selection-and-implementation hearing under Welfare and Institutions Code2 section 366.26 for his daughter, 18-month-old M.D. Father claims that insufficient evidence supports the court’s decision to terminate reunification services and set a hearing under section 366.26. We We resolve this case by a memorandum opinion in accordance with 1 California Standards of Judicial Administration, section 8.1. 2 All further statutory references are to the Welfare and Institutions Code. 1 agree with the San Francisco Human Services Agency (Agency), however, that father’s notice of intent to file a writ petition was untimely. Because father has not offered any excuse for his failure to comply with the applicable time limit, we dismiss his petition. The underlying facts are not relevant to our disposition. Briefly, in June 2019 the Agency filed a petition seeking dependency court jurisdiction over then one-month-old M.D. under section 300, subdivisions (b)(1) and (j). Most of the allegations involved C.A. (mother), who used methamphetamine during the pregnancy in violation of her parole, had diagnoses of bipolar disorder and manic depression, and previously failed to reunify with four of M.D.’s older half-siblings.3 M.D. was not removed from parental custody, and the case proceeded as a family maintenance case. A few months later, after father left M.D. in mother’s care in violation of the family’s safety plan, M.D. was removed and an amended petition was filed. At the January 2020 jurisdiction/disposition hearing, the juvenile court sustained allegations involving mother’s substance abuse, mental health issues, and previous child welfare history, as well as an amended allegation under section 300, subdivision (b)(1), involving father’s “minimiz[ing]” of mother’s substance abuse problem. Father was granted six months of reunification services. Over the next several months, father visited with M.D. and completed a parenting program, but he did not undergo a substance abuse assessment or begin individual therapy as his case plan required. At the six-month review hearing on September 11, 2020, at which father appeared and testified, the juvenile court found that reasonable services were provided but both parents “failed to participate in and make substantial progress in the court-ordered 3 Mother did not file a petition for extraordinary writ review. 2 treatment program.” It also found that there was “not a substantial probability” of M.D.’s return to parents’ care. The court then terminated parents’ reunification services and set a section 366.26 hearing for January 6, 2021. A party who seeks writ review under section 366.26, subdivision (l), must first file a notice of intent to file a writ petition. (Cal. Rules of Court, rule 8.450(e).)4 The deadline to file a notice of intent varies depending on the manner by which the filing party received notice of the order setting the section 366.26 hearing. (Rule 8.450(e)(4).) This time requirement, which ensures that writ petitions are resolved before the section 366.26 hearing occurs, is “mandatory.” (Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008 , 1012; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798 , 807.) Thus, although reviewing courts generally should decide writ petitions “on the merits by written opinion” (rule 8.452(h)(1); § 366.26, subd. (l)(4)(B)), an untimely notice of intent requires dismissal of the petition unless good cause is shown for the lack of compliance. (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826 , 1830–1831; Roxanne H., at p. 1012; rule 8.450(d) [no extension of deadline permitted absent “exceptional showing of good cause”].) Father filed his notice of intent on September 22, 2020, which was 11 days after the juvenile court’s order setting a section 366.26 hearing. But where, as here, “the party was present at the hearing when the court ordered a hearing under . . . section 366.26, the notice of intent must be filed within 7 days after the date of the order setting the hearing.” (Rule 8.450(e)(4)(A).) The notice’s untimeliness was not identified until the Agency filed its response to father’s petition on November 13. We then asked father to 4 All further rule references are to the California Rules of Court. 3 explain why his failure to comply with rule 8.450(e)(4)(A)’s deadline should be excused and gave him seven days to submit a response, but he did not do so. Since father has not shown good cause for the untimely filing of his notice of intent, we must dismiss his petition. He is therefore barred in any subsequent appeal from challenging the order setting a hearing under section 366.26. (§ 366.26, subd. (l)(2); Roxanne H. v. Superior Court, supra, 35 Cal.App.4th at pp. 1012–1013.) Our decision is final in this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).) 4  _________________________ Humes, P.J. WE CONCUR: _________________________ Banke, J. _________________________ Sanchez, J. Anthony D. v. Superior Court A160990 5

2020-12-03 18:03:19.67724+00

https://isc.idaho.gov/opinions/47163.pdf

IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 47163 STATE OF IDAHO, ) ) Plaintiff-Appellant, ) Boise, August 2020 Term ) v. ) Opinion Filed: November 10, 2020 ) JAMES JEFFERSON KENT, ) Melanie Gagnepain, Clerk ) Defendant-Respondent. ) Appeal from the District Court of the Fifth Judicial District for the State of Idaho, Minidoka County. Jonathan P. Brody, District Judge. The order of the district court is reversed and remanded. Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant State of Idaho. Kenneth K. Jorgensen argued. Eric D. Fredericksen, State Appellate Public Defender, Boise, for Respondent James Jefferson Kent. Justin M. Curtis argued. _____________________ STEGNER, Justice. The State appeals from the district court’s order granting James Kent’s motion to suppress statements he made during a non-custodial interrogation. During this interrogation, the officer began reading Kent his Miranda rights, at which point Kent interrupted the officer and told him he would not answer any questions. The officer continued to read Kent his rights and, after completing the warnings, asked Kent if he was willing to speak with him. Kent said that he would, and eventually made incriminating statements. The district court suppressed the statements. The district court found that Kent was not in custody at the time, but nevertheless held: “Where Miranda warnings are read to an individual unnecessarily and the defendant invokes the right to remain silent, an officer may not ignore that invocation.” On appeal, the State argues that the district court erred by extending Miranda’s application to a non-custodial interrogation. In response, Kent contends that because he has a constitutional right to remain silent regardless of whether he was afforded Miranda warnings and irrespective of whether he was in custody, the district court did not err in suppressing his statements as having 1 been obtained in violation of the right to remain silent. For the reasons set forth below, we reverse the district court’s order granting Kent’s motion to suppress, and remand to the district court for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND On July 25, 2018, a patrol officer with the Rupert City Police Department assisted in a probation search of Kent’s home.1 During the probation search, the officer found methamphetamine, marijuana, and drug paraphernalia in certain rooms occupied by Kent. Kent was not present at the time the contraband was discovered. As a result of the discovery, the officer contacted Kent by telephone to arrange a meeting to discuss the contraband found at his residence. After several unsuccessful attempts to meet with Kent, the officer was able to meet him at Kent’s residence on August 6, 2018. During this conversation, the officer informed Kent about the contraband located at his residence. Near the beginning of their conversation, Kent denied that the paraphernalia was his. The officer then began to read Kent his Miranda2 rights. While the rights were being read, Kent interrupted and stated that he would not answer any questions. After completing the Miranda warnings, the officer asked Kent if he would be willing to talk to him. Kent responded, “Yeah, you can follow me.” Kent then made several incriminating statements to the officer. The district court concluded that “[a]t no point was [Kent] arrested or restrained, he was never told he was not able to leave, and he was never told he could not terminate the conversation.” The State charged Kent with possession of methamphetamine, marijuana, and drug paraphernalia. Kent filed a motion to suppress, arguing that the statements should be suppressed because “despite his invocation of his Fifth Amendments rights, [the officer] continued to question [him] which resulted in incriminating statements being made.” In response, the State argued that Kent was not in custody and, therefore, the officer had no obligation to stop questioning Kent once he had invoked his right to remain silent. The district court granted Kent’s motion to suppress. The district court also concluded that Kent unequivocally invoked his right to remain silent while being read his rights. Further, the district court found that Kent was not in custody for purposes of Miranda. Nevertheless, the district 1 The probation search involved an individual living in Kent’s home; the search was apparently unrelated to Kent himself. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 court concluded that “an invocation of the right to remain silent may not be ignored once invoked after being read Miranda warnings, regardless of custody.” The district court reasoned, [i]f a person hears their Miranda rights, they expect to have those rights. If an invocation of a right contained in the warnings is not respected, the warnings are at best meaningless. An individual no longer knows that he is free to exercise his right to remain silent simply because warnings are read. This defeats the stated purpose of the Miranda warnings, “to insure that the individual knows he is free to exercise the privilege at that point in time.” Therefore, some protection is needed for an invocation of the right to remain silent after a warning is given, even if the warning was unnecessary. Based on the district court’s reasoning, it granted Kent’s motion to suppress his incriminating statements.3 The State filed a timely appeal. II. STANDARD OF REVIEW “The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, the Court accepts the trial court’s findings of fact that are supported by substantial evidence, but freely reviews the application of constitutional principles to the facts as found.” State v. Bodenbach, 165 Idaho 577 , 589, 448 P.3d 1005 , 1017 (2019) (quoting State v. Moore, 164 Idaho 379 , 381, 430 P.3d 1278 , 1280 (2018)). “This Court will accept the trial court’s findings of fact unless they are clearly erroneous.” State v. Gonzales, 165 Idaho 667 , 671, 450 P.3d 315 , 319 (2019) (quoting State v. Purdum, 147 Idaho 206 , 207, 207 P.3d 182 , 183 (2009)). III. ANALYSIS The Fifth Amendment to the Constitution guarantees that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. at 444 , the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” These procedural safeguards require police to inform suspects of their rights to remain silent and to counsel, and to obtain a knowing, voluntary, 3 The district court also found that the statements were made voluntarily and had not been elicited while Kent was in custody. Accordingly, the State would be permitted to use the statements as impeachment evidence. See Oregon v. Elstad, 470 U.S. 298 , 307 (1985) (“Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination.”). Such a use of Kent’s statements would arise if Kent testified in his own defense. See Harris v. New York, 401 U.S. 222 , 225 (1971). 3 and informed waiver of those rights. Id. “The prophylactic Miranda warnings therefore are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.’ ” New York v. Quarles, 467 U.S. 649 , 654 (1984) (alterations in original) (quotations omitted). “After a suspect has been advised of the right to remain silent and of the right to counsel pursuant to Miranda, police may not proceed with questioning if the suspect indicates a desire to remain silent.” State v. Payne, 146 Idaho 548 , 558, 199 P.3d 123 , 133 (2008) (citing Miranda, 384 U.S. at 473–74). “An individual’s right to cut off questioning is grounded in the Fifth Amendment and must be ‘scrupulously honored.’ ” Id. (quoting Michigan v. Mosley, 423 U.S. 96 , 103 (1975)). However, decisions from both the United States and Idaho Supreme Courts make it clear that the protections afforded by Miranda are only triggered when “there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ”4 Stansbury v. California, 511 U.S. 318 , 322 (1994) (quoting Oregon v. Mathiason, 429 U.S. 492 , 495 (1977)); see also Andersen, 164 Idaho at 313, 429 P.3d at 854. There are several pertinent facts that shape the issues presented in this appeal. First, the district court found that Kent was not in custody. The district court reasoned that Kent had not been arrested or detained, he was never told he was not free to leave, and he was never told he could not terminate the conversation. However, despite Kent not being in custody, the officer read Kent his Miranda rights. While these rights were being read to Kent, he unequivocally invoked the right to remain silent. However, the officer did not cease his questioning, eventually eliciting incriminating statements from Kent. There are two main questions presented by this appeal. First, was the officer required to stop questioning Kent after he invoked his right to remain silent even though Kent was not in custody? Second, if an officer unnecessarily informs a person of his Miranda rights, is the officer 4 Whether a suspect is in custody is generally “a fact determined by whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” State v. Andersen, 164 Idaho 309 , 313, 429 P.3d 850 , 854 (2018). “ ‘[C]ustody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ ” Howes v. Fields, 565 U.S. 499 , 508–09 (2012) (internal citations omitted). 4 required to comply with those Miranda measures, including ceasing questioning once Kent invoked his right to remain silent? A. As a preliminary matter, Kent had a right to remain silent regardless of whether he was in custody. Kent’s arguments on appeal rely on the fact that the right to remain silent exists regardless of custody. The State does not dispute that the right to remain silent exists outside of custody; rather, the State argues that the right was not infringed upon by the officer’s questioning. In State v. Moore, 131 Idaho 814 , 965 P.2d 174 (1998), this Court considered whether pre- arrest, pre-Miranda silence could be used in the State’s case-in-chief. Id. This Court held that defendants’ Fifth Amendment right[s] not to have their silence used against them in a court proceeding is applicable pre-arrest and pre-Miranda warnings. The constitutional right is always present. “While the presence of Miranda warnings might provide an additional reason for disallowing use of the defendant’s silence, they are not a necessary condition to such a prohibition.” Miranda only defines the time at which the interrogation has become so coercive that the defendant must be advised of his rights and waive them. Id. at 820–21, 965 P.2d at 180–81 (italics added) (internal citation omitted). Therefore, it is well- established Kent enjoyed the right to remain silent regardless of whether he was in custody. This is in direct contrast to the right to counsel in a custodial interrogation. Unlike the right to remain silent—which is in the text of the Constitution—the Fifth Amendment right to counsel during a custodial interrogation was created by Miranda and its progeny Edwards v. Arizona, 451 U.S. 477 (1981). See McNeil v. Wisconsin, 501 U.S. 171 , 177–78 (1991) (“[W]e established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including the right to have counsel present.”). The difference between the right to remain silent and the right to counsel during a custodial interrogation is noteworthy because many of the cases cited by the State in support of its position that the district court erroneously extended Miranda, focus on whether a suspect can invoke the right to counsel in a non-custodial setting. See, e.g., State v. Hurst, 151 Idaho 430 , 434, 258 P.3d 950 , 954 (Ct. App. 2011); Commonwealth v. Libby, 32 N.E.3d 890 (Mass. 2015) (holding that the defendant could not invoke the right to counsel because he was not in custody); Commonwealth v. Morgan, 610 A.2d 1013 (Pa. Super. 1992) (same). Here, there is no question that Kent had the right to remain silent regardless of whether he was in custody. The question remains, however, whether the officer was required to cease 5 questioning once Kent unequivocally invoked his right to remain silent in a non-custodial setting, particularly once his Miranda rights had been read to him. B. Because the right to cut off questioning is a safeguard to counteract the coercive nature of a custodial interrogation, the officer was not required to stop questioning Kent once he invoked the right to remain silent. The district court granted Kent’s motion to suppress, concluding that “invocation of the right to remain silent may not be ignored once invoked after being read Miranda warnings, regardless of custody.” The district court reasoned that if Miranda warnings are given unnecessarily and the right to remain silent is invoked, the proper procedure is to cease interrogation. On appeal, the State argues that the district court erroneously expanded Miranda to exclude Kent’s non-custodial statements. The State argues that Miranda jurisprudence applies only in custodial settings as a means to counteract the coercive nature of custodial interrogations. Kent responds that “[b]ecause individuals possess exactly the same Fifth Amendment right to remain silent regardless of whether they are in custody, and regardless of whether they have received Miranda warnings, this Court should apply the same standard to an unequivocal assertion of that right regardless of when it is asserted.” Accordingly, Kent urges this Court to hold that upon an unequivocal invocation of the right to remain silent an officer must “scrupulously honor” that right by ceasing further interrogation. The State does not dispute that Kent had a right against compelled self-incrimination that he could, and at one point did, invoke. However, the State contends that this is a “red herring.” Instead, the State argues that the right to terminate questioning is a right created by Miranda, and that the right only applies to custodial settings to counteract the “inherently compelling pressures” of custodial interrogations. McNeil, 501 U.S. at 176 (1991). We agree that given the facts of this case, the officer was not obliged to stop questioning Kent. The focus of this argument is the “right” to cut off questioning. This right is typically referred to as a safeguard of the Fifth Amendment created by Miranda. See Mosley, 423 U.S. at 103 (“The critical safeguard . . . is a person’s ‘right to cut off questioning.’ ”). “Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” Id. at 100–01 (citing Miranda, 384 U.S. at 473–74). Further, the right to cut off questioning must be “scrupulously honored.” Id. 6  We hold the specific restrictions regarding questioning a suspect created by Miranda are limited to custodial interrogations. We also conclude the district court erred in expanding Miranda’s application in the way that it did. “It is settled that the safeguards [e.g., the right to cut off questioning] prescribed by Miranda become applicable as soon as a suspect” is in custody. Berkemer v. McCarty, 468 U.S. 420 , 440 (1984) (italics added) (quotation omitted). In fact, “[t]he requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.” Mosley, 423 U.S. at 104 (italics added). The Fifth Amendment’s protection against self-incrimination, which Miranda purports to implement, merely guarantees that no defendant “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This provides obvious logical support for the proposition that a suspect has the proverbial “right to remain silent”—that is, the right not to be compelled to answer questions. It is less clear, however, that this guarantees a right not to be asked such questions at all. Fifth Amendment—Invocation of the Right to Cut off Questioning, 124 HARV. L. REV. 189, 196 n.73 (2010). Whether the defendant has the right to cut off questioning outside of custody is a matter of first impression. Further, the question is largely unanswered by any other jurisdiction. However, the Supreme Court of the United States has suggested that one cannot anticipatorily invoke a safeguard of Miranda. See McNeil, 501 U.S. at 181 n.3 (“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation[.]’ ”). Additionally, the Kansas Supreme Court held the safeguards against self-incrimination established by Miranda—such as the right to counsel and the right to cut off questions—do not exist outside a presumptively coercive custodial interrogation. See State v. Haddock, 897 P.2d 152 , 162 (Kan. 1995), abrogated on other grounds by State v. James, 79 P.3d 169 (Kan. 2003). Because the right to cut off questioning is a right created by Miranda as a safeguard to the inherently coercive custodial interrogation, the safeguard is only applicable once the suspect is in custody. Here, Kent was not in custody. Therefore, the officer was not required to stop questioning. To be clear, Kent retained his right to remain silent throughout his entire interaction with the police officer. Had he invoked that right and sat mute, the officer would be obliged to desist. However, those are most decidedly not the facts presented in the State’s appeal. We leave for another day 7 the length to which an officer may persist when confronted with an intransigent suspect, who is not in custody, yet declines to answer the officer’s questions. Because Kent argues that the fact that the officer read him his Miranda rights changes the required analysis, we next review whether the reading of Miranda requires the officer to comply with the safeguards provided by Miranda regardless of whether the suspect is in custody. C. Miranda rights that are read unnecessarily are a factor to be considered in whether subsequent statements were voluntary. Kent alternatively argues that “even if this Court agrees with the State that an officer generally does not need to scrupulously honor the invocation of the right to remain silent absent custodial interrogation, the unique facts of this case still require[ ]” suppression of Kent’s statements. Kent contends that the district court correctly concluded that “law enforcement officers are not free to give the Miranda warnings and then blatantly ignore a suspect’s attempt to invoke any right thereunder.” The State responds, contending that the unnecessary reading of Miranda warnings do not provide any additional rights. First, the State notes that the case law relied on by Kent merely considered whether the officers’ action rendered the statements involuntary under the Fifth Amendment rather than finding a Miranda violation. Second, the State argues that a per se rule that Miranda’s prophylactic rules apply in a non-custodial setting merely because the officer reads the warnings is contrary to the body of case law set down by the Supreme Court of the United States. Although not put in so many words, it appears that the district court held that once Miranda rights are read, the interrogation is transformed into a custodial interrogation, and officers are subsequently required to comply with the procedure set out in Miranda. There is a divergence of authority regarding this issue. The United States Court of Appeals for the Eighth Circuit most clearly identifies the jurisdictional split regarding the unnecessary reading of Miranda warnings. [The defendant] argues that the government must honor the rights he was read, even if he was not otherwise entitled to those rights. In contrast, the government objects that the reading of the Miranda warnings to [the defendant] was superfluous, since [the defendant] was not in custody, and was not entitled to Miranda’s protections in any event. . . . Several circuits and state supreme courts have discussed the transformation argument with varied results. Some courts have held that the reading of the Miranda rights during a non-custodial interrogation does not afford the suspect any of those rights, since the reading is unnecessary. See, e.g., Davis v. Allsbrooks, 778 F.2d 168 , 172 (4th Cir. 1985); United States v. Charles, 738 F.2d 8  686, 693 n.6 (5th Cir. 1984); United States v. Kampiles, 609 F.2d 1233 , 1242 (7th Cir. 1979); United States v. Lewis, 556 F.2d 446 , 449 (6th Cir.1977); State v. Haddock, 897 P.2d 152 , 162–63 (Kan.1995). Other courts have suggested that the reading of the Miranda rights does transform a non-custodial interrogation into a custodial interrogation. See United States v. Bautista, 145 F.3d 1140 , 1151 (10th Cir.), cert. denied, 525 U.S. 911 (1998); Tukes v. Dugger, 911 F.2d 508 , 516 n.11 (11th Cir.1990). Finally, a third category of cases adopts a middle ground, permitting the trial court to consider the reading of the Miranda rights as one factor among many used to determine whether a suspect’s statements are voluntary. See Sprosty v. Buchler, 79 F.3d 635 , 642 (7th Cir.1996); State v. Taillon, 470 N.W.2d 226 , 229 (N.D.1991). United States v. Harris, 221 F.3d 1048 , 1051 (8th Cir. 2000) (recognizing jurisdictional split but ruling on alternate basis). In favor of treating the interrogation as a custodial interrogation, both the United States Court of Appeals for the Tenth and Eleventh Circuits suggest that, although a suspect cannot anticipatorily invoke his Miranda rights, there is an exception when the officer provides Miranda warnings and then refuses to honor them. Bautista, 145 F.3d at 1150–51; see also Tukes, 911 F.2d at 516 n.11. In Bautista, the defendant accompanied two law enforcement officers to the police station. Bautista, 145 F.3d at 1145 . Bautista was never in custody, but was read his Miranda rights. Id. Bautista claimed that after he invoked the right to remain silent, the federal agents ignored the invocation and continued questioning him. Id. The Tenth Circuit expressed concern over the government’s assertion that it made no difference that the law enforcement officer unnecessarily advised Bautista of his Miranda rights when he was not in custody. That court stated: The government’s position misses the point of Miranda and Edwards. If the authorities are free to tell a suspect that he has the right to appointed counsel, but could, while continuing to interrogate him, refuse to provide such counsel on the grounds that the suspect was not actually in custody, the suspect would be led to believe that no request for counsel would be honored. “The coercive effect of continued interrogation would thus be greatly increased because the suspect would believe that the police ‘promises’ to provide the suspect’s constitutional rights were untrustworthy, and that the police would continue to violate those rights as they wished, regardless of assurances to the contrary.” Tukes, 911 F.2d at 516 n.11. . . . However, law enforcement officers are not free to give the Miranda warning and then blatantly ignore a suspect’s attempt to invoke any right thereunder. Bautista, 145 F.3d at 1150–51 (parallel citation omitted). As noted by the Bautista court, there is potential harm when a suspect is informed of his rights and those rights are not honored, i.e., the suspect may be led to believe his rights will not be honored under any circumstance. This was the 9 reasoning provided by the district court in this case in concluding that the statements should be suppressed. On the other hand, some jurisdictions—including the Fourth, Fifth, and Sixth Circuits— conclude that an unnecessary recitation of Miranda rights does not provide any additional protection. See, e.g., Davis, 778 F.2d at 172 ; Charles, 738 F.2d at 693 n.6; Lewis, 556 F.2d at 449. The Fourth Circuit noted, [t]o hold that the giving of Miranda warnings automatically disables police from further questioning upon a suspect’s slightest indication to discontinue a dialogue would operate as a substantial disincentive to police to inform suspects of their constitutional protections. It would convert admirable precautionary measures on the part of officers into an investigatory obstruction. Davis, 778 F.2d at 172 ; see also Charles, 738 F.2d at 694 (quotation marks omitted) (“The precaution of giving a suspect Miranda warnings in a noncustodial setting does not either transform that setting into, or help [ ] produce, a custodial interrogation for Miranda purposes.”). Although this Court has not had the opportunity to address this split, the Court of Appeals addressed this question in State v. Hamlin, 156 Idaho 307 , 314, 324 P.3d 1006 , 1013 (Ct. App. 2014). In Hamlin, the Court of Appeals stated, [t]o hold that the reading of Miranda warnings is a heavy indicator that the interviewee was in custody would give officers a disincentive to provide warnings that will be of benefit to interviewees regardless of their custodial status. The use of Miranda warnings should be encouraged, not deterred, as they both benefit interviewees and protect law enforcement from later allegations of Miranda violations. Id. Based on this Court of Appeals decision, Idaho would fall among those jurisdictions in which an unnecessary reading of Miranda does not require an officer to act as if it is a custodial interrogation and cease questioning. However, there is another option not explored by the majority of jurisdictions. Some jurisdictions, including the Seventh Circuit and the North Dakota Supreme Court, have held that precautionary Miranda warnings may be used as a factor to review whether the statements were made voluntarily. We believe that the absolute per se rule espoused by Taillon that Miranda warnings once given must be honored even though not required to have been given, “would operate as a substantial disincentive to police to inform suspects of their constitutional protections.” Id. But we do not believe that Miranda warnings once given, albeit gratuitously, are wholly irrelevant. The giving of Miranda warnings 10  and the accused’s reliance on the rights described in the warnings are relevant factors in evaluating the voluntariness of any incriminating statements. State v. Taillon, 470 N.W.2d 226 , 229 (N.D. 1991). We adopt the rule set out in Taillon, where an unnecessary reading of Miranda is merely a factor to be considered in determining whether the statements were involuntary or given in violation of the Fifth Amendment. Such an approach strikes the appropriate balance between ensuring that Miranda warnings do not rise to such a level that the interrogation becomes coercive, and avoiding unreasonably obstructing law enforcement’s ability to investigate a crime. Further, the State concedes that the proper legal standard in this case is whether Kent’s statements were made voluntarily and not coerced. Under the application of this principle, we next review whether the statements were made voluntarily. D. Kent’s statements were voluntary and, therefore, the district court erred in suppressing the statements. The district court concluded that Kent’s statements were voluntary under the totality of the circumstances. Kent disputes this conclusion, arguing that after Miranda warnings were given his right to remain silent was ignored, rendering his statements involuntary. In response, the State contends that the statements were voluntary. The State notes that Kent does not point to any evidence in the record to support the conclusion that the statements were involuntary besides to rearticulate his arguments regarding the reading of his Miranda rights. To determine whether a confession is voluntary, a court must examine the totality of the circumstances and ask whether the defendant’s will was overborne by police conduct. Dickerson v. United States, 530 U.S. 428 , 434 (2000) (citation omitted). “The due process test takes into consideration ‘the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’ ” Id. (citations omitted). “Some additional factors in the voluntariness determination include whether Miranda warnings were given, the length of the detention, the repeated and prolonged nature of the questioning, and deprivation of food or sleep.” State v. Doe, 131 Idaho 709 , 713, 963 P.2d 392 , 396 (Ct. App. 1998). Based on the totality of the circumstances, including the fact that Miranda rights were read unnecessarily, the district court’s conclusion that Kent’s confession was voluntary is supported by substantial and competent evidence. First, the interview only lasted approximately fifteen minutes in total. (Obviously, Kent was not subjected to “repeated and prolonged . . . questioning” or “deprivation of food or sleep.”) After completing the reading of the Miranda rights, the officer 11 merely asked Kent if he would be willing to speak with him. After no further probing, much less badgering by the officer, Kent responded, “Yeah, you can follow me.” Second, the interview occurred in Kent’s own home, where he explicitly told the officer he would be leaving for work shortly after the conversation began. There is nothing in the record that suggests that Kent’s will was overborne by the police officer’s action. Accordingly, the district court’s conclusion that Kent’s statements were voluntary was not clearly erroneous. IV. CONCLUSION For the foregoing reasons, the district court’s order granting the motion to suppress is reversed and the case remanded for further proceedings consistent with this decision. Chief Justice BURDICK, Justices BEVAN, MOELLER and MELANSON, J. Pro Tem, CONCUR. 12

2020-03-06 14:09:19.426894+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2020/2020-Ohio-823.pdf

[Cite as State v. Lyons, 2020-Ohio-823.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-26 : v. : Trial Court Case No. 2018-CR-822 : CHRISTOPHER R. LYONS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 6th day of March, 2020. ........... MARCY VONDERWELL, Atty. Reg. No. 0078311, Greene County Prosecutor’s Office, Appellate Division, 31 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 West Fourth Street, Suite 250, Dayton, Ohio 45402 Attorney for Defendant-Appellant ............. FROELICH, J.  -2- {¶ 1} Christopher Lyons pled guilty in the Greene County Court of Common Pleas to one count of aggravated robbery, a felony of the first degree. As part of the plea agreement, the parties agreed to a five-year sentence if Lyons truthfully testified, if required, in his co-defendants’ cases. After Lyons failed to testify, Lyons moved to withdraw his plea. The trial court denied the motion and sentenced him to seven years in prison. Lyons appeals from his conviction, challenging the denial of the motion to withdraw his plea and his sentence. For the following reasons, the trial court’s judgment will be affirmed. I. Factual and Procedural History {¶ 2} According to the bill of particulars, on October 9, 2018, Lyons and several other individuals, including people with the surnames of Decosta, Ball and Reynolds,1 went to an apartment in Fairborn to rob the resident. After the resident arrived at the apartment, Decosta came from the kitchen area and demanded money while holding a firearm. Decosta told the resident that he would be shot if he did not empty his pockets. The resident refused, and Decosta struck him in the face five to six times with the firearm. Lyons, Ball, and Reynolds assisted Decosta in subduing the victim and taking his property; Lyons placed the victim in a “stronghold.” Lyons and the others then fled from the apartment. The victim suffered a concussion, required stitches for his head wounds, and has had kidney issues as a result of the assault. The police later recovered the firearm from Reynolds. {¶ 3} Ten days later, Lyons was indicted for aggravated robbery in violation of R.C. 1The sentencing hearing transcript references the trial of Jordan Young, who apparently was another participant in the robbery. The bill of particulars does not mention Young.  -3- 2911.01(A)(1), and aggravated robbery in violation of R.C. 2911.01(A)(3), both felonies of the first degree. Lyons subsequently moved to suppress an eyewitness identification of him from a photo array. The court conducted a hearing on the motion on December 31, 2018, following which it denied the motion to suppress. {¶ 4} The court scheduled a jury trial for February 4, 2019. However, on January 31, 2019, Lyons pled guilty to aggravated robbery in violation of R.C. 2911.01(A)(1). The Plea Agreement Report, signed by both parties, identified the negotiated plea as: In consideration for Defendant’s guilty plea to Count 1, the State dismisses Count 2. Defendant will truthfully testify, if required, in the matter of any co-defendants. In return, the State and Defendant will stipulate to a 5 year prison sentence without IPP, TC or JR. Defendant understands that the State is not bound by this stipulation if he fails to truthfully testify, if required. Defendant agrees to pay restitution of $37,171.39. {¶ 5} After reading the terms of the plea during the trial court’s Crim.R. 11 colloquy, the court informed Lyons that, “assuming the conditions have been met in this case,” it would agree to impose the five-year prison sentence. Lyons told the court that he understood the conditions for receiving the five-year sentence. The court further told Lyons that if Lyons failed to testify truthfully, the court would still impose a prison term, but that term could be five years, less than five years, or more than five years with a maximum possible sentence of 11 years. Lyons again expressed his understanding. The court accepted Lyons’s guilty plea but delayed sentencing while his co-defendants’ cases were pending. The court ultimately scheduled disposition for April 24, 2019. {¶ 6} On April 19, 2019, Lyons moved to withdraw his plea. In his motion, Lyons  -4- acknowledged that his plea agreement included a requirement that he “truthfully testify, if required, in the matter of any co-defendant.” The motion stated: “Mr. Lyons suggests that had [sic] he cannot, in good conscious [sic], uphold that agreement.” The trial court addressed the motion at sentencing, concluding that Lyons presented no basis for withdrawing his plea, even when considered under the liberal presentence standard of review. The trial court then imposed seven years in prison and ordered Lyons to pay restitution in the amount of $37,717.39, jointly and severally with his co-defendants, plus court costs. {¶ 7} Lyons appeals from his conviction, raising four assignments of error. II. Lyons’s Motion to Withdraw Plea {¶ 8} In his first assignment of error, Lyons claims that the trial court erred in overruling his motion to withdraw his plea, because he did not make his plea knowingly, intelligently, and voluntarily. Specifically, Lyons asserts that he did not realize that he would need to testify as part of his plea and thus he “had no idea what the plea arrangement actually was for.” (Appellant’s Brief, p. 6.) His second assignment claims that the trial court abused its discretion in denying his motion to withdraw his plea. {¶ 9} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” Under Crim.R. 32.1, a presentence motion to withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St. 3d 521 , 527, 584 N.E.2d 715 (1992). {¶ 10} Even before sentencing, “the right to withdraw a plea is not absolute and a  -5- trial court retains discretion to overrule a pre-sentence plea-withdrawal motion.” State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7. After conducting a hearing on such a motion, “the trial court must ‘determine whether [the defendant] has a reasonable and legitimate basis’ for the withdrawal, rather than ‘[a] mere change of heart.’ ” State v. Bush, 2d Dist. Clark No. 2018-CA-13, 2018-Ohio-5272, ¶ 10, quoting Xie at 527. {¶ 11} In reviewing a trial court’s decision on a defendant’s motion to withdraw his or her plea filed before sentencing, we apply the following nine factors: (1) whether the accused was represented by highly competent counsel, (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial court gave full and fair consideration to the motion, (5) whether the motion was made within a reasonable time, (6) whether the motion sets out specific reasons for the withdrawal, (7) whether the accused understood the nature of the charges and possible penalties, (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges, and (9) whether the state is prejudiced by withdrawal of the plea. E.g., State v. Becraft, 2017-Ohio-1464, 89 N.E.3d 218 (2d Dist.); State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29. {¶ 12} “In considering these factors, the trial court employs a balancing test; no single factor is dispositive.” Warrix at ¶ 30, citing State v. Preston, 2d Dist. Montgomery No. 25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id., quoting Xie at 527. A change of heart or mistaken belief about the plea is not a reasonable basis requiring a trial court to permit the defendant to withdraw his or her plea.  -6- State v. Maddickes, 2d Dist. Clark No. 2013 CA 7, 2013-Ohio-4510, ¶ 15. However, in considering whether to allow withdrawal of the plea, it is not simply sufficient for the trial court to find that the Crim.R. 11 colloquy satisfied the requirements of that Rule and the United States and Ohio Constitutions; if it were, even a presentence plea could never be withdrawn. Id. {¶ 13} It is within the sound discretion of the trial court to grant or deny a motion to withdraw a plea. Xie at 526. We will not reverse a trial court’s decision to deny a motion to withdraw a guilty or no contest plea absent an abuse of discretion. Id. at 527, citing State v. Adams, 62 Ohio St. 2d 151 , 157, 404 N.E.2d 144 (1980). {¶ 14} At the outset, we have reviewed the transcript of the plea hearing, and the trial court fully complied with its obligations under Crim.R. 11. The trial court reviewed with Lyons the offense to which he was pleading guilty, the maximum penalty he faced, the effect of a guilty plea, and the constitutional rights that he was waiving by entering his plea. The trial court also discussed the plea agreement with Lyons. The court read the Plea Agreement Report verbatim and asked Lyons, “What I just read, is that your understanding of the position of the Prosecuting Attorney in this case?” Lyons responded, “Yes, sir.” After discussing the restitution portion of the plea agreement, the court returned to the agreed prison sentence: THE COURT: All right. I will indicate to you that assuming the conditions have been met in this case, that I will agree to impose the five-year prison sentence, all right? So I’ll just tell you that right now. DEFENDANT CHRISTOPHER LYONS: Thank you, sir. THE COURT: And you know what the conditions are for that?  -7- DEFENDANT CHRISTOPHER LYONS: Yes. THE COURT: Because I will do so, do you understand that you’ll not be considered for Community Control in this case, and while you can appeal anything else that’s been done in your case, the one thing you could not appeal would be the agreed upon five-year sentence; do you understand that? DEFENDANT CHRISTOPHER LYONS: Yes. THE COURT: Okay. If for any reason – I guess I should probably let you know about this – if for any reason you failed to testify truthfully, I could still impose a five-year prison sentence, but I would not be bound by that. I could give you less or give you more. Do you understand that? DEFENDANT CHRISTOPHER LYONS: Yes, sir. THE COURT: Because the maximum sentence you could receive is 11 years. And I also want you to know in fairness to you there is a presumption of prison in this case, so if everything works out the way everybody wants it, I will give the five-year prison sentence; but I also want you to know that if there’s not an agreement to be made, in fairness to you, I will still be imposing a prison sentence. In other words, I just want to let you know before we resolve this plea, you’re not getting Community Control in this case; do you understand that? DEFENDANT CHRISTOPHER LYONS: Yes, sir. (Plea Tr. at 14-15.) {¶ 15} At sentencing, defense counsel told the trial court that “we did file a Motion  -8- to Withdraw the Plea. I believe that the – Mr. Lyons did enter into a plea agreement, which requested that he did testify, would testify truthfully. He chose not to do that.” (Sentencing Tr. at 3.) Counsel continued: “He indicates that he did not want to do that, that he did not know that he was going to need to do that, and as a result of that, he would like to withdrawal [sic] his plea.” Id. When asked to clarify the motion, defense counsel stated, “* * * I think Mr. Lyons’s argument is, that he did not realize that part of his plea agreement was for him to testify or have that option to testify, and the benefit that would come with that[.]” Id. at 4. {¶ 16} The trial court then asked defense counsel the reason why Lyons’s plea should be withdrawn. When defense counsel stated that he could not add anything more to what he had already said, the court asked the same question of Lyons. Lyons stated that he “took the five years” because he was “worried.” The court then discussed the terms of the plea deal with Lyons: THE COURT: Well, did the plea agreement not say if you testify truthfully, you’d get five years? DEFENDANT CHRISTOPHER LYONS: No. It said that I would have to – on being – testifying as well, being – I don’t know how to say it. THE COURT: Well, let me, let me go to the plea form. I have it in the file here. Let me go look it up here. Now, the Plea Agreement Report says, the Defendant will testify truthfully, if required, in the matter of any Co- Defendants. In return, the State and the Defendant will stipulate to a five- year prison sentence. So do you believe that there was a condition to your getting five years? Or you had to do something to get five years?  -9- DEFENDANT CHRISTOPHER LYONS: Yes, sir. THE COURT: Well, what was that? DEFENDANT CHRISTOPHER LYONS: To testify on my Co-Defendant’s behalf. THE COURT: Okay. So you struck a contract with the State to say, if I testify, I’ll get five years. DEFENDANT CHRISTOPHER LYONS: Yes. THE COURT: Okay. And you’re saying – obviously, you didn’t testify, and that’s okay. Where, where are we with the five years right now? DEFENDANT CHRISTOPHER LYONS: Well, another thing that I was adding on to there was that I was also worried about getting more than five years going to trial if I so happened to have lost. THE COURT: A whole lot of people plead guilty because they don’t want to get a lot of years. DEFENDANT CHRISTOPHER LYONS: Yes. *** THE COURT: And you pled guilty, and – well, I guess, Mr. Lyons, I think I kind of understand where you’re coming from. Unfortunately, I guess we have to kind of put this in two parts. Part one is, you pled guilty with the understanding you might get five years if you testify, okay? That was really the only thing between three and eleven years that was ever put down in writing that you could get five years if you testified. It went on to say – I didn’t read this – but it went on to say in the Plea Agreement Report, the  -10- Defendant understands that the State is not bound by this stipulation if he fails to truthfully testify, which means that you had a choice. No one was saying you had to testify; but if you didn’t testify, the State wasn’t going to be part of a five-year stipulation; okay? So we’re kind of there. Now, setting that aside, maybe – and I don’t mean to put words in your mouth, but I think you’re just saying in effect, I didn’t want – I was pleading guilty anticipating I wouldn’t get more than five years; and since I think I might get more than five years, I want to withdrawal [sic] my plea. Am I incorrect or am I close or where am I on this into what you’re thinking? DEFENDANT CHRISTOPHER LYONS: Yes. {¶ 17} In overruling Lyons’s motion to withdraw his plea, the trial court told Lyons that he had made an agreement with the State that he would get five-years in prison if he testified truthfully, and while he was not required to testify, he was not entitled to receive the benefit of that bargain if he did not. The court further stated that, given that Lyons had elected not to testify, it “appreciate[ed] [his] desire not to get a serious sentence.” The court explained, however, that “there has to be incentives for people to testify,” and there likewise needs to be a consequence if people decide not to testify. The court continued: Unfortunately, too many people I think hear what they want to hear, and they don’t listen to everything else; and you heard five years, and okay. The life was good. But you didn’t hear that I told you you could get eleven. I didn’t promise you you’d get five. You didn’t hear you had to testify to get your five. You’re kind of in that situation.  -11- The court concluded that, even under a liberal presentence standard for reviewing a motion to withdraw a plea, it had not “received a reason” to justify the withdrawal of Lyons’s plea. {¶ 18} We find no fault with the trial court’s denial of Lyons’s motion to withdraw his plea. In this case, the plea agreement between the parties provided for a five-year sentence if Lyons testified during any co-defendants’ case and for no agreed sentence if he did not. The trial court discussed the plea agreement with Lyons at the plea hearing, and the court reasonably concluded that Lyons entered his plea with the understanding that he would receive five years in prison if he testified in his co-defendants’ cases and that he faced additional prison time if he elected not to testify. At the hearing on Lyons’s motion to withdraw his plea, Lyons made a confusing statement about believing that he had to testify on his co-defendant’s behalf. However, Lyons further confirmed that he understood that the plea agreement with the State included that he testify truthfully, if required, in order to receive the five-year sentence. The trial court could have reasonably concluded that Lyons’s stated confusion about on whose behalf he had to testify did not render his plea other than knowing, intelligent, and voluntary. {¶ 19} In discussing Lyons’s plea at the hearing on Lyons’s motion to withdraw his plea, the trial court told Lyons that he apparently “didn’t hear that I told you you could get eleven” years in prison. In our view, this statement does not reflect a finding that Lyons’s plea was not made knowingly, intelligently, and voluntarily. Rather, this statement simply reflected the court’s understanding that, at the time of the plea, Lyons perhaps discounted the possibility that he might get more than five years in prison, given the terms of the plea and that fact that Lyons had not yet been asked to testify. Based on the record before  -12- us, Lyons’s plea was made knowingly, intelligently, and voluntarily. {¶ 20} Moreover, we cannot conclude that the trial court abused its discretion in denying Lyons’s motion to withdraw his plea. Lyons was represented by highly competent counsel, and he received a full Crim.R. 11 hearing before entering his guilty plea. There is no suggestion that Lyons failed to understand the aggravated robbery charge and the possible penalties he faced, or that Lyons was not guilty or had a complete defense to the charge. {¶ 21} Lyons claims that he was denied a full and impartial hearing on the motion, because he was not given an opportunity to present witnesses or evidence. However, the court provided Lyons and his defense counsel the opportunity to fully explain their reasons for Lyons’s motion. Lyons expressed that he sought to withdraw his plea based on his understanding of the plea agreement and his desire not to receive a lengthy sentence. There is no suggestion that Lyons had any potential witnesses or evidence relevant to his reasons for seeking to withdraw his guilty plea, and neither defense counsel nor Lyons requested an opportunity to present evidence or witnesses. Contrast State v. Bush, 2d Dist. Clark Nos. 2015-CA-39, 2015-CA-40, 2015-CA-41, & 2015-CA- 42, 2016-Ohio-5536 (The trial court abused its discretion in failing to hold an evidentiary hearing on defendant’s motion to withdraw his plea where the motion was based on the alleged recantation of a victim and the defendant indicated he had documentary evidence to support his motion). {¶ 22} Lyons further asserts that the trial court failed to give full and fair consideration to his motion. He argues, “It is evident from a review of the records [sic], that the decision of the Court had already been made.” We disagree. The trial court  -13- spoke with both defense counsel and Lyons in an effort to discern if there were any reason that might justify the withdrawal of Lyons’s plea. The trial court’s lengthy exchange with Lyons evidenced a diligent inquiry into whether Lyons’s request was based on a change of heart or mistaken belief about the plea, or whether there was an additional “reasonable and legitimate basis for the withdrawal of the plea,” Xie, 62 Ohio St. 3d at 527 , 584 N.E.2d 715 . {¶ 23} Lyons’s motion was made prior to sentencing, and there was no indication that the State would have been prejudiced by the withdrawal of his plea. Nevertheless, Lyons failed to present a reason for withdrawing his plea other than an apparent change of heart or misunderstanding about his plea. Having failed to testify in a matter of a co- defendant, Lyons apparently was unhappy that he no longer was guaranteed a five-year sentence. The plea agreement between the parties specifically provided that the State would not be bound by the five-year stipulated sentence if Lyons failed to testify, and the trial court explained that it could impose any sentence within the statutory range for a first- degree felony (three to eleven years) if Lyons failed to testify. The court reasonably concluded that Lyons’s desire to receive a five-year sentence, despite his failure to testify, did not justify the withdrawal of his plea. {¶ 24} Lyons’s first and second assignments of error are overruled. III. Lyons’s Sentence {¶ 25} In his third assignment of error, Lyons claims that the trial court erred by not sentencing him to five years in prison in accordance with the stipulated sentence. Lyons claims that there was no evidence that Lyons failed to satisfy the conditions for the stipulated sentence, and therefore the trial court erred in failing to impose the five-year  -14- sentence. {¶ 26} Lyons presents two reasons for why he was entitled to receive the stipulated five-year sentence. First, he argues that the record does not establish that he was asked to testify, but failed to do so. Second, he argues that, even if he failed to testify as requested by the State, his testimony was not “required” because each of his co- defendants was convicted without his testimony. {¶ 27} The record does not explicitly state that the State subpoenaed Lyons to testify in any of his co-defendants’ cases and that Lyons either refused to testify or testified untruthfully. Nevertheless, Lyons’s motion to withdraw his plea acknowledged the plea condition that “Defendant will truthfully testify, if required, in the matter of any co- defendants” and further stated, “Mr. Lyons suggests that had [sic] he cannot, in good conscious [sic], uphold that agreement.” During the hearing on the motion, defense counsel again recognized that the plea agreement included a provision that Lyons testify truthfully, and that Lyons “chose not to do that.” In its subsequent discussion with Lyons, the trial court repeatedly indicated that Lyons did not testify; neither Lyons, defense counsel, nor the prosecutor contradicted those statements, and there is no indication that the court misunderstood Lyons’s actions with respect to his co-defendants’ cases. Based on the record, the trial court reasonably concluded that Lyons failed to comply with the condition in his plea agreement related to the stipulated sentence. {¶ 28} We are unpersuaded by Lyons’s argument that he did not fail to testify truthfully “as required” because his co-defendants were convicted without his testimony. The record does not detail the outcomes of Lyons’s co-defendants’ cases. Regardless, a plain reading of the plea agreement indicates that the State stipulated to a five-year  -15- prison sentence if Lyons testified truthfully in his co-defendants’ cases if Lyons were required to testify, not if Lyons’s testimony were required for his co-defendants’ convictions. {¶ 29} The parties stipulated that Lyons would receive a five-year prison sentence if he met the condition that he “truthfully testify, if required, in the matter of any co- defendants”; the trial court stated at the plea hearing that it would sentence Lyons in accordance with the parties’ agreement. The plea agreement further provided that the State would not be bound by the stipulation if Lyons failed to meet that condition, and the court made clear that any failure to meet that condition would result in a prison sentence within the sentencing range for a first-degree felony, with a possible maximum sentence of 11 years in prison. Once Lyons failed to meet the condition for a five-year prison sentence, the court’s imposition of the seven-year sentence, as requested by the State at sentencing, was permitted by the plea agreement. {¶ 30} Lyons’s third assignment of error is overruled. IV. Motion to Suppress {¶ 31} In his fourth assignment of error, Lyons claims that the trial court erred in denying his motion to suppress. Appellate counsel states that he believes the argument to be without merit, but indicates that he has included it at Lyons’s request. Appellate counsel asks us to examine the issue “in a similar nature to the review provided in [an] Anders [v. California, 386 U.S. 738 , 87 S. Ct. 1396 , 18 L. Ed. 2d 493 (1967)] situation.” {¶ 32} This court has disapproved the filing of “partial Anders briefs.” A brief pursuant to Anders is “appropriate when appellate counsel has conscientiously concluded that there are no issues to be raised that merit consideration by the appellate court. Id. -16- If appellate counsel determines there are any issues warranting appellate review, even if there is only one, discussion of non-meritorious issues is neither appropriate nor desirable.” State v. Padgett, 2d Dist. Greene No. 99 CA 87, 2000 WL 873218 , *2 (June 30, 2000). In the absence of an Anders brief, it is not the role of an appellate court to independently review the record for additional potential errors. See State v. Powell, 2d Dist. Montgomery No. 27951, 2018-Ohio-4693, ¶ 43. Accordingly, we decline to review whether the trial court erred in denying Lyons’s motion to suppress. Regardless, because Lyons’s guilty plea constituted a complete admission of guilt, his guilty plea waived any error in the trial court’s ruling on his motion to suppress. E.g., State v. Smith, 2d Dist. Montgomery No. 26746, 2016-Ohio-3361, ¶ 24. {¶ 33} Lyons’s fourth assignment of error is overruled. V. Conclusion {¶ 34} The trial court’s judgment will be affirmed. ............. DONOVAN, J. and WELBAUM, J., concur. Copies sent to: Marcy Vonderwell Brent E. Rambo Hon. Stephen Wolaver

2020-01-17 22:02:07.827518+00

Murdock

Murdock, dissenting: I dissent for reasons which will be apparent from a reading of my dissent in Young Men’s Christian Association Retirement Fund, Inc., 18 B. T. A. 139.

2020-12-03 18:16:19.727461+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5526.pdf

[Cite as State v. Jones, 2020-Ohio-5526 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 20AP-301 (C.P.C. No. 18CR-3064) v. : (ACCELERATED CALENDAR) James J. Jones, : Defendant-Appellant. : D E C I S I O N Rendered on December 3, 2020 On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J. Stanley, for appellee. On brief: James J. Jones, pro se. APPEAL from the Franklin County Court of Common Pleas LUPER SCHUSTER, J. {¶ 1} Defendant-appellant, James J. Jones, pro se, appeals from a decision and entry of the Franklin County Court of Common Pleas denying his motion to vacate or set aside judgment. For the following reasons, we affirm. I. Facts and Procedural History {¶ 2} By indictment filed June 26, 2018, plaintiff-appellee, State of Ohio, charged Jones, along with seven other codefendants, with one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, a first-degree felony; one count of trafficking in marijuana, in violation of R.C. 2925.03, a second-degree felony; two counts of trafficking in cocaine, in violation of R.C. 2925.03, first-degree felonies; one count of trafficking in marijuana, in violation of R.C. 2925.03, a fourth-degree felony; and one count of receiving proceeds of an offense subject to forfeiture proceedings, in violation of R.C. 2927.21, a third- No. 20AP-301 2 degree felony. Five of the counts contained accompanying one-year firearm specifications, and two of the counts contained forfeiture specifications for the $509,373 in currency seized following an execution of a search warrant. The indictment related to conduct occurring between December 18, 2017 and June 16, 2018. {¶ 3} After initially entering a plea of not guilty, Jones appeared with counsel on May 15, 2019 and entered a guilty plea to one count of trafficking in cocaine as a first-degree felony, alleging over 100 grams of cocaine. The trial court accepted Jones' guilty plea, found Jones guilty of the one count of trafficking in cocaine as a first-degree felony, and imposed the mandatory required prison sentence of 11 years. Jones did not file a timely direct appeal of his conviction and sentence. {¶ 4} On September 20, 2019, Jones filed a pro se motion in the trial court to vacate or set aside judgment. Jones argued in his motion that the issuance of the search warrant leading to his indictment was erroneous because the Franklin County Municipal Court lacked jurisdiction to issue the warrant. The state opposed Jones' motion, arguing that the legality of the warrant is irrelevant because Jones' conviction was pursuant to a guilty plea, not pursuant to the search warrant. Jones filed a reply to the state's memorandum in opposition on October 16, 2019 arguing the trial court did not have subject-matter jurisdiction over Jones pursuant to his theory that the search warrant was issued in the wrong jurisdiction and the indictment filed pursuant to that search warrant was void ab initio. {¶ 5} While his motion to vacate was still pending, Jones filed a February 7, 2020 motion for summary judgment or, in the alternative, request for an oral hearing related to his September 20, 2019 motion to vacate. Additionally, Jones filed an untimely notice of appeal of his conviction in this court on February 21, 2020. This court denied Jones' motion for leave to file a delayed appeal in a June 30, 2020 memorandum decision. State v. Jones, 10th Dist. No. 20AP-115. Jones also filed a pro set writ of mandamus in this court on April 8, 2020. The magistrate recommended dismissal of Jones' mandamus complaint in an April 14, 2020 magistrate's decision. State ex rel. Jones v. State of Ohio, 10th Dist. No. 20AP-204. Jones filed objections to the magistrate's decision on May 11, 2020, and the matter is still pending. No. 20AP-301 3 {¶ 6} On May 13, 2020, the trial court issued a decision and entry denying Jones' motion to vacate or set aside judgment and denying as moot his motion for summary judgment or, alternatively, requesting an oral hearing. The trial court construed Jones' motion as a post-sentence motion to withdraw a guilty plea under Crim.R. 32.1. Finding Jones did not demonstrate he is entitled to withdraw his guilty plea, the trial court denied Jones' motion to vacate or set aside the judgment of his conviction. Jones timely appeals. II. Assignment of Error {¶ 7} Jones assigns the following error for our review: The Franklin County Common Pleas Court erred by denying Defendant-Appellant's Motion to Vacate because the judgment was void ab initio. III. Analysis {¶ 8} In his sole assignment of error, Jones argues the trial court erred in denying his motion to vacate the judgment of his conviction. The trial court construed his motion as a post-sentence motion to withdraw his guilty plea, and we similarly review it as a post- sentence motion to withdraw his plea. See, e.g., State v. Schlee, 117 Ohio St.3d 153 , 2008- Ohio-545, ¶ 12 (noting courts have discretion to "recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged"). {¶ 9} Pursuant to Crim.R. 32.1, a "motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Thus, a trial court may allow a post-sentence withdrawal of a guilty plea only to correct a manifest injustice. State v. Morris, 10th Dist. No. 19AP-152, 2019-Ohio-3795 , ¶ 11. A defendant seeking a post-sentence withdrawal of a guilty plea bears the burden of establishing the existence of a manifest injustice. Id., citing State v. Morgan, 10th Dist. No. 12AP-241, 2012-Ohio-5773 , ¶ 11. The term " '[m]anifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' " Morgan at ¶ 10, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123 , ¶ 5. No. 20AP-301 4 {¶ 10} The decision to grant or deny a motion to withdraw a guilty plea made under Crim.R. 32.1 rests within the sound discretion of the trial court, and we will not disturb that decision on appeal absent an abuse of discretion. Morris at ¶ 12, citing Morgan at ¶ 11. An abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 , 219 (1983). {¶ 11} "It is well-established that res judicata bars claims raised in a Crim.R. 32.1 postsentence motion to withdraw a guilty plea that were raised or could have been raised in a prior proceeding such as a direct appeal." Morris at ¶ 13; State v. Taylor, 10th Dist. No. 19AP-795, 2020-Ohio-4581 , ¶ 12 ("[t]his court has consistently applied res judicata to bar a defendant from raising issues in a post-sentence Crim.R. 32.1 motion that were or could have been raised on direct appeal"), citing State v. Mobley, 10th Dist. No. 18AP-23, 2018-Ohio-3880 , ¶ 14, citing State v. Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-2746 , ¶ 11. " 'Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment [of] conviction, or an appeal from that judgment.' " (Emphasis omitted.) State v. Cole, 2 Ohio St.3d 112 , 113 (1982), quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. {¶ 12} As the trial court noted, the proper remedy for Jones' arguments related to deficiencies in the search warrant would have been a timely filed motion to suppress. However, Jones did not file a motion to suppress and instead entered a plea of guilty. This court has held that "[a] criminal defendant who enters a voluntary plea of guilty while represented by competent counsel waives all nonjurisdictional defects in the proceedings." State v. Fortner, 10th Dist. No. 08AP-191, 2008-Ohio-5067 , ¶ 8 (noting that by pleading guilty, a defendant waives his right to challenge any defects in an indictment); see also State v. Sullivan, 10th Dist. No. 12AP-526, 2013-Ohio-675 , ¶ 20. Though Jones attempts to phrase his arguments related to the defects in the search warrant as creating a jurisdictional problem, we note, as the trial court did, that Jones does not challenge the subject-matter jurisdiction of the trial court to accept his guilty plea. Additionally, Jones did not timely appeal from his judgment of conviction and sentence, and this court denied his request to No. 20AP-301 5 file a delayed appeal. The arguments Jones makes in his September 20, 2019 motion to vacate are arguments Jones could have made in a direct appeal or by a prior motion. Consequently, res judicata operates to bar Jones from making these arguments in a post- sentence motion to withdraw his plea. Morris at ¶ 13. Thus, because res judicata bars Jones' motion, the trial court did not err in denying Jones' motion. Id. Accordingly, we overrule Jones' sole assignment of error. IV. Disposition {¶ 13} Based on the foregoing reasons, the trial court did not err in denying Jones' motion to vacate or set aside the judgment of his conviction. Having overruled Jones' sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. DORRIAN and BEATTY BLUNT, JJ., concur.

2020-12-03 18:08:13.86208+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=56687&csIID=56687&deLinkID=798011&onBaseDocumentNumber=20-43721

C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts

2020-12-03 18:16:20.606107+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5525.pdf

[Cite as State v. Jones, 2020-Ohio-5525 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 20AP-300 (C.P.C. No. 18CR-3063) v. : (ACCELERATED CALENDAR) Anthony L. Jones, : Defendant-Appellant. : D E C I S I O N Rendered on December 3, 2020 On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J. Stanley, for appellee. On brief: Anthony L. Jones, pro se. APPEAL from the Franklin County Court of Common Pleas LUPER SCHUSTER, J. {¶ 1} Defendant-appellant, Anthony L. Jones, pro se, appeals from a decision and entry of the Franklin County Court of Common Pleas denying his motion to vacate or set aside judgment. For the following reasons, we affirm. I. Facts and Procedural History {¶ 2} By indictment filed June 26, 2018, plaintiff-appellee, State of Ohio, charged Jones, along with seven other codefendants, with one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, a first-degree felony; one count of trafficking in marijuana, in violation of R.C. 2925.03, a second-degree felony; two counts of trafficking in cocaine, in violation of R.C. 2925.03, first-degree felonies; one count of trafficking in marijuana, in violation of R.C. 2925.03, a fourth-degree felony; and one count of receiving No. 20AP-300 2 proceeds of an offense subject to forfeiture proceedings, in violation of R.C. 2927.21, a third- degree felony. Five of the counts contained accompanying one-year firearm specifications, and two of the counts contained forfeiture specifications for the $509,373 in currency seized following an execution of a search warrant. The indictment related to conduct occurring between December 18, 2017 and June 16, 2018. The case number in the trial court for this first indictment was Franklin C.P. No. 18CR-3063. Jones initially entered a plea of not guilty. {¶ 3} On February 11, 2019, Jones filed a motion to suppress the search of a warehouse at 3410 East Fifth Avenue, arguing the search warrant affidavit did not establish a sufficient nexus between the crimes under investigation and the premises to be searched, and, thus, the search warrant was not supported by probable cause. That same day, Jones filed a motion to suppress the warrantless search of 2430 Performance Way, arguing a police officer's warrantless search of the premises did not fall into any of the exceptions of the search warrant requirement. The state filed a memorandum contra to both of Jones' motions to suppress. {¶ 4} Prior to the trial court issuing a ruling as to either of Jones' motions to suppress, Jones appeared with counsel on May 14, 2019 and entered a plea of guilty to one count of engaging in a pattern of corrupt activity and one count of trafficking in cocaine in case No. 18CR-3063. That same day, Jones also entered a guilty plea in Franklin C.P. No. 19CR-2314 to one count of trafficking in cocaine relating to a separate indictment the state filed May 10, 2019 for conduct occurring April 21, 2018. The trial court accepted Jones' guilty pleas in both cases, found Jones guilty, and imposed the mandatory required prison sentence of 11 years for the offense of engaging in a pattern of corrupt activity to run consecutive to the mandatory 4 years for the trafficking in cocaine offense in case No. 18CR- 3063, and the trial court ordered the sentences in case No. 18CR-3063 to run consecutive to the 4-year sentence it imposed for the offense of trafficking in cocaine in case No. 19CR- 2314, for a total aggregate prison sentence of 19 years. Jones did not file a timely direct appeal. {¶ 5} On September 26, 2019, Jones filed a pro se motion to vacate or set aside judgment. Jones argued in his motion that the issuance of the search warrant leading to his indictment was erroneous because the Franklin County Municipal Court lacked No. 20AP-300 3 jurisdiction to issue the warrant. The state opposed Jones' motion, arguing the that the legality of the warrant is irrelevant because Jones' conviction was pursuant to a guilty plea, not pursuant to the search warrant. Jones filed a reply to the state's memorandum in opposition on October 18, 2019 arguing the trial court did not have subject-matter jurisdiction over Jones pursuant to his theory that the search warrant was issued in the wrong jurisdiction and the indictment filed pursuant to the search warrant was void ab initio. Jones filed this motion only in case No. 18CR-3063. {¶ 6} While his motion to vacate was still pending, Jones filed a February 7, 2020 motion for summary judgment or, in the alternative, request for an oral hearing related to his motion to vacate. Additionally, Jones filed an untimely notice of appeal of his conviction in case No. 18CR-3063 in this court on February 21, 2020. This court denied Jones' motion for leave to file a delayed appeal in a June 30, 2020 memorandum decision. State v. Jones, 10th Dist. No. 20AP-113. Jones also filed a pro se writ of mandamus in this court on April 8, 2020. The magistrate recommended dismissal of Jones' mandamus complaint in an April 15, 2020 magistrate's decision. State ex rel. Jones v. Franklin Cty. Court of Common Pleas, 10th Dist. No. 20AP-203. Jones filed objections to the magistrate's decision on April 27, 2020, and the matter is still pending. {¶ 7} On May 12, 2020, Jones filed a pro se petition for postconviction relief or, in the alternative, motion to withdraw plea pursuant to Crim.R. 32.1. {¶ 8} The next day, on May 13, 2020, the trial court issued a decision and entry denying Jones' motion to vacate or set aside judgment and denying as moot his motion for summary judgment or, alternatively, requesting an oral hearing. The trial court construed Jones' motion as a post-sentence motion to withdraw a guilty plea under Crim.R. 32.1. Finding Jones did not demonstrate he is entitled to withdraw his guilty plea, the trial court denied Jones' motion to vacate or set aside the judgment of his conviction. Jones timely appeals. II. Assignment of Error {¶ 9} Jones assigns the following error for our review: The Franklin County Common Pleas Court erred by denying Defendant-Appellant's Motion to Vacate because the judgment was void ab initio. No. 20AP-300 4 III. Analysis {¶ 10} In his sole assignment of error, Jones argues the trial court erred in denying his motion to vacate the judgment of his conviction. The trial court construed his motion as a post-sentence motion to withdraw his guilty plea, and we similarly review it as a post- sentence motion to withdraw his plea. See, e.g., State v. Schlee, 117 Ohio St.3d 153 , 2008- Ohio-545, ¶ 12 (noting courts have discretion to "recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged"). {¶ 11} Pursuant to Crim.R. 32.1, a "motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Thus, a trial court may allow a post-sentence withdrawal of a guilty plea only to correct a manifest injustice. State v. Morris, 10th Dist. No. 19AP-152, 2019-Ohio-3795 , ¶ 11. A defendant seeking a post-sentence withdrawal of a guilty plea bears the burden of establishing the existence of a manifest injustice. Id., citing State v. Morgan, 10th Dist. No. 12AP-241, 2012-Ohio-5773 , ¶ 11. The term " '[m]anifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.' " Morgan at ¶ 10, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123 , ¶ 5. {¶ 12} The decision to grant or deny a motion to withdraw a guilty plea made under Crim.R. 32.1 rests within the sound discretion of the trial court, and we will not disturb that decision on appeal absent an abuse of discretion. Morris at ¶ 12, citing Morgan at ¶ 11. An abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 , 219 (1983). {¶ 13} "It is well-established that res judicata bars claims raised in a Crim.R. 32.1 postsentence motion to withdraw a guilty plea that were raised or could have been raised in a prior proceeding such as a direct appeal." Morris at ¶ 13; State v. Taylor, 10th Dist. No. 19AP-795, 2020-Ohio-4581 , ¶ 12 ("[t]his court has consistently applied res judicata to bar a defendant from raising issues in a post-sentence Crim.R. 32.1 motion that were or could have been raised on direct appeal"), citing State v. Mobley, 10th Dist. No. 18AP-23, 2018-Ohio-3880 , ¶ 14, citing State v. Ikharo, 10th Dist. No. 10AP-967, 2011-Ohio-2746 , No. 20AP-300 5 ¶ 11. " 'Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment [of] conviction, or an appeal from that judgment.' " (Emphasis omitted.) State v. Cole, 2 Ohio St.3d 112 , 113 (1982), quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. {¶ 14} As the trial court noted, the proper remedy for Jones' arguments related to deficiencies in the search warrant would have been a timely filed motion to suppress. However, though Jones did file two motions to suppress, neither of those motions addressed Jones' current legal theory of the propriety of the municipal court issuing the search warrant. Jones did not wait for a ruling on his motions to suppress and instead entered a plea of guilty. This court has held that "[a] criminal defendant who enters a voluntary plea of guilty while represented by competent counsel waives all nonjurisdictional defects in the proceedings." State v. Fortner, 10th Dist. No. 08AP-191, 2008-Ohio-5067 , ¶ 8 (noting that by pleading guilty, a defendant waives his right to challenge any defects in an indictment); see also State v. Sullivan, 10th Dist. No. 12AP-526, 2013-Ohio-675 , ¶ 20. Though Jones attempts to phrase his arguments related to the defects in the search warrant as creating a jurisdictional problem, we note, as the trial court did, that Jones does not challenge the subject-matter jurisdiction of the trial court to accept his guilty plea. Additionally, Jones did not timely appeal from his judgment of conviction and sentence, and this court denied his request to file a delayed appeal. The arguments Jones makes in his September 26, 2019 motion to vacate are arguments Jones could have made in a direct appeal or by a prior motion. Consequently, res judicata operates to bar Jones from making these arguments in a post-sentence motion to withdraw his plea. Morris at ¶ 13. Thus, because res judicata bars Jones' motion, the trial court did not err in denying Jones' motion. Id. Accordingly, we overrule Jones' sole assignment of error. No. 20AP-300 6 IV. Disposition {¶ 15} Based on the foregoing reasons, the trial court did not err in denying Jones' motion to vacate or set aside the judgment of his conviction. Having overruled Jones' sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. DORRIAN and BEATTY BLUNT, JJ., concur.

2020-12-03 18:08:14.028627+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=55914&csIID=55914&deLinkID=798008&onBaseDocumentNumber=20-43718

C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts

2020-12-03 18:16:20.906846+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5521.pdf

[Cite as State v. Fox, 2020-Ohio-5521 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 19AP-677 v. : (C.P.C. No. 15CR-5585) Lewis R. Fox, : (ACCELERATED CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on December 3, 2020 On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J. Stanley, for appellee. On brief: Lewis R. Fox, pro se. APPEAL from the Franklin County Court of Common Pleas BEATTY BLUNT, J. {¶ 1} Defendant-appellant, Lewis R. Fox, appeals the September 5, 2019 decision of the Franklin County Court of Common Pleas denying his timely petition for postconviction relief without a hearing. {¶ 2} Fox was indicted on November 13, 2015, with two counts of felonious assault in violation of R.C. 2903.11, each with three-year firearm specifications. Following a jury trial in January 2017, Fox was found guilty on all counts and sentenced to a total term of ten years incarceration. This court affirmed his conviction and the Supreme Court of Ohio did not accept jurisdiction over his case. See State v. Fox, 10th Dist. 17AP-295, 2018-Ohio- 501, discretionary appeal not allowed, 152 Ohio St.3d 1484 , 2018-Ohio-1990 .  2 No. 19AP-677 {¶ 3} In its opinion affirming his conviction on direct appeal, this court summarized the evidence presented at Fox's trial: Mary Griffin testified as follows. During the evening of October 29, 2015, Mary Griffin and her grandmother, Mary Robinson, drove to Elaine Robinson's residence. When they arrived, Elaine opened the door and they all talked, with Mary Griffin and Mary Robinson standing just outside the front door. At some point, Fox came down from the upstairs of the residence, and "some words were exchanged" between Mary Griffin and Fox. Fox called Mary Griffin and Mary Robinson "bitch[es]," and said if they "didn't move off his porch that he was going to shoot" them. Fox was only a few feet away from Mary Griffin as they verbally confronted each other. Mary Griffin heard two or three gunshots and then realized she had been shot in her upper thigh. Mary Griffin did not see the firearm in Fox's hand prior to hearing the gunshots, but she observed Fox raise his arm when the shots were fired. Fox had pointed the gun at Mary Griffin's leg. Mary Griffin denied lunging at or touching Fox before the shooting. Mary Robinson was standing close behind Mary Griffin at the time of the shooting. Mary Robinson testified as follows. On the day of the shooting, she and Mary Griffin intended to pick up Elaine Robinson from her home because she was having problems with her boyfriend, Fox. After they arrived at Elaine's residence, Elaine told them that Fox would not let her go with them. Elaine called for Fox, and when he descended the stairs he was angry and possibly drunk. Fox said, "I'm sick of you bitches." Mary Robinson saw Fox's right "hand coming up," and then she heard one or two gunshots. Fox was pointing the weapon at Mary Griffin. Prior to the weapon being discharged, Mary Robinson did not see Mary Griffin touch Fox in any manner, but they were in close proximity to each other. Mary Robinson was within arm's reach of Mary Griffin when Fox fired the shots. Fox "didn't make any threats * * * He just shot [Mary Griffin]." No bullet struck Mary Robinson. Elaine Robinson, who was called as a witness on Fox's behalf, testified as follows. Fox and Elaine were living together on the day of the shooting. On that day, Mary Griffin and Mary Robinson arrived at Elaine and Fox's residence upset because of statements Fox had made regarding Mary Robinson. Elaine called for Fox and told him that "Mary and them are at the door." Fox came down the stairs and to the front door. Elaine  3 No. 19AP-677 did not see Fox carrying a weapon until she heard two gunshots. Fox did not point the weapon at anyone. When Fox fired the weapon, he was falling backward in response to Mary Griffin moving her hands toward Fox. Elaine characterized the shooting as being an accidental consequence of Fox stumbling backward. Elaine also testified that she told the police after the shooting that Fox shot downward at the porch to scare away Mary Griffin and Mary Robinson. Fox testified on his own behalf. At approximately 8:00 p.m. on the day of the shooting, Fox was upstairs at his residence when he heard loud voices downstairs. Fox heard someone screaming in anger and then heard Elaine call for him in a distressed manner. Because he was concerned that there was an intruder in the house, he grabbed a gun from his bedroom closet and brought it with him down the stairs. Holding the gun hidden behind his leg with his finger on the trigger, Fox stood in the doorway to the home and told Mary Griffin and Mary Robinson that they needed to leave. Mary Griffin then "lunged" at him like she was going to grab him. Fox testified that he accidentally shot the firearm twice. Fox "stumbled back * * * and the firearm just discharged." He "even [saw] the [* * * 5] fire shoot out twice, shot twice." He did not either raise the gun or shoot at the ground on purpose. After the weapon fired twice, Fox dropped it on a chair inside the house. When asked how the firearm discharged, Fox explained, "I guess I squeezed the trigger or something. You know how you're - - an excited moment. I mean, it surprised me." After the shooting, and based on information Fox provided, police recovered a five-shot revolver in the kitchen of Elaine and Fox's residence. Two of the rounds were spent, and the other three were unfired. Columbus Division of Police Detective Steven Miller, who interviewed Fox on the night of the shooting, testified that the gun recovered from the scene of the shooting was a "double-action" firearm. For this type of firearm, the hammer must be pulled back with a squeeze or pull of the trigger in order to fire each bullet. The parties stipulated that Mary Griffin sustained an injury consistent with a single gunshot that entered her right thigh and exited her right buttock at a down to up trajectory. Id. at ¶ 3-8. {¶ 4} While his direct appeal was pending in this court, Fox filed a pro se postconviction petition arguing that his trial counsel was ineffective, based on (1) trial  4 No. 19AP-677 counsel's alleged failure to advise Fox to accept a proffered plea agreement, (2) trial counsel's alleged failure to investigate the scene of the crime for additional bullet-trajectory evidence, (3) trial counsel's alleged failure to properly prepare Elaine Robinson to testify, (4) trial counsel's alleged failure to investigate Fox's claim of disability in his hand and arm, (5) trial counsel's alleged failure to call the doctors who examined his hand and arm and who examined and treated Mary Griffin's injuries as witnesses, (6) trial counsel's alleged failure to call a private investigator as a witness, (7) trial counsel's alleged failure to call a ballistics expert as a witness, (8) trial counsel's alleged failure to call a "gun expert" as a witness, (9) trial counsel's alleged failure to present evidence of the lesser-included offense of reckless assault, (10) trial counsel's alleged failure to play additional recorded witness interviews at trial, and (11) trial counsel's alleged failure to preserve Fox's right to a speedy trial. Fox did not attach any evidence or affidavits to his petition, but alongside his petition he filed a motion for appointment of counsel, as well as a motion for expert assistance, and attached to his motion for expert assistance he included a copy of a police report, letters he received from his trial counsel and appellate counsel, a copy of a photograph of himself and Elaine Robinson, and three hand-drawn maps of the scene of the shooting and surrounding areas. He did not, however, submit any witness affidavits or proposed experts or attach any expert reports but, instead, repeatedly asserted in both his petition and his motions that evidence to support his postconviction claims "is not attached because petitioner needs the assistance of an attorney, investigator, and/or assistance of this Honorable Court to produce the evidence." {¶ 5} The state filed a timely answer and motion to dismiss Fox's postconviction petition, but the trial court held its decision on the petition in abeyance until this court and  5 No. 19AP-677 the Supreme Court of Ohio determined the merits of Fox's direct appeal. On September 5, 2019, the trial court denied Fox's petition without a hearing: Upon careful review of defendant's petition and the record in this matter, the Court finds defendant's petition lacks evidence that a constitutional error occurred that would support the Court's finding that defendant's conviction was void or voidable. The correspondence from defendant's trial counsel and appellate counsel do not advance defendant's claims of ineffective assistance. To the contrary, trial counsel's letter actually refutes defendant's position. The other evidence submitted by defendant; namely, the police report and drawings of the crime scene, likewise, do not support defendant's position of ineffective assistance of counsel or other constitutional error. Finally, the record is replete with speedy-trial waivers containing defendant's signature. Without evidence containing sufficient operative facts that demonstrate defendant's constitutional rights were violated, the Court finds defendant's motion is without merit. Decision and Entry at 5. Fox has appealed to this court, and now asserts three assignments of error with the trial court's decision: [I.] The trial court abused its discretion when it dismissed appellant's post-conviction [sic] petition based upon: A) "The court [found] defendant's petition lacks evidence that a constitutional error occurred;" [sic] and, (2) "[D]efendant's petition [was] barred by the application of res judicata." [II.] The trial court abused its discretion when it failed to hold an evidentiary hearing on appellant's post conviction [sic] petition. [III.] Appellant's conviction and sentence is voidable because appellant was denied the effective assistance of trial counsel in violation of his rights under the Sixth Amendment of the United States Constitution. {¶ 6} R.C. 2953.21(A)(1)(a) authorizes a person who has been convicted of a criminal offense "who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * [to] file a petition in the court that imposed sentence,  6 No. 19AP-677 stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." "[A] petition for postconviction relief is a collateral civil attack on a criminal judgment, not an appeal of the judgment." State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309 , at ¶ 8, citing State v. Steffen, 70 Ohio St.3d 399 , 410 (1994). Postconviction relief " 'is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record.' " Id., quoting State v. Murphy, 10th Dist. No. 00AP- 233, 2000 Ohio App. LEXIS 6129 (Dec. 26, 2000). {¶ 7} A petitioner is not automatically entitled to an evidentiary hearing on a postconviction petition. Sidibeh at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107 , 110-13 (1980). To warrant an evidentiary hearing, the petitioner bears the initial burden of providing evidence demonstrating a cognizable claim of constitutional error. Id., citing R.C. 2953.21(C); Hessler at ¶ 24. Prior to granting a hearing on a petition for postconviction relief, the trial court must determine if substantive grounds for relief exist—specifically, whether the petition sets forth enough facts to support a claim of a constitutional issue. State v. Kapper, 5 Ohio St.3d 36 (1983). The trial court may deny a postconviction petition without an evidentiary hearing "if the petition, supporting affidavits, documentary evidence, and trial record do not demonstrate sufficient operative facts to establish substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the syllabus. {¶ 8} Fox's petition asserts the general claim that his counsel was constitutionally ineffective. "To prevail on his claim, appellant must demonstrate: (1) defense counsel's performance was so deficient he or she was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution, and (2) defense counsel's  7 No. 19AP-677 errors prejudiced defendant, depriving her of a trial whose result is reliable." State v. Clinkscale, 10th Dist. No. 11AP-980, 2012-Ohio-2868 , ¶ 22, citing, e.g., Strickland v. Washington, 466 U.S. 668 , 687 (1984). The petitioner "bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." State v. Calhoun, 86 Ohio St.3d 279 , 283 (1999). A defendant claiming ineffective assistance of counsel must identify specific acts or omissions of counsel that are alleged not to be within the realm of reasonable professional judgment. Strickland at 690. And "[t]here is a strong presumption that licensed attorneys are competent and that the challenged action is the product of sound trial strategy." State v. Nichols, 116 Ohio App.3d 759 , 764 (1996). In order for a claim of ineffective assistance to be successful, the court must find that the challenged acts or omissions were "outside the wide range of professionally competent assistance," Strickland at 690, and also that defendant was prejudiced thereby. {¶ 9} Finally, the doctrine of res judicata places a significant restriction on the availability of postconviction relief, since it bars a convicted defendant from presenting " 'any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment.' " State v. Cole, 2 Ohio St.3d 112 , 113 (1982), quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. We have also observed that res judicata "implicitly bars a petitioner from 're-packaging' evidence or issues which either were, or could have been, raised in the context of the petitioner's trial or direct appeal." State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321 , ¶ 27. {¶ 10} Appellate courts are extremely deferential to trial court decisions regarding postconviction relief. A reviewing court will not overrule the trial court's finding on a  8 No. 19AP-677 petition for postconviction relief if the decision is supported by "competent and credible evidence." Sidibeh at ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377 , 2006-Ohio-6679 , ¶ 58. And appellate courts should not overturn a trial court's denial of postconviction relief unless an abuse of discretion has occurred. Gondor at ¶ 60. An abuse of discretion occurs when a trial court's determination is "unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217 , 219 (1983). {¶ 11} In sum, prior to dismissing Fox's petition without a hearing, the trial court was required to determine that the evidentiary materials submitted with the petition for postconviction relief did not provide or allege sufficient operative facts to indicate that Fox's trial counsel was deficient and that Fox was prejudiced by this deficiency. See, e.g., State v. Mengistu, 10th Dist. 03AP-1202, 2004-Ohio-3596 , ¶ 14. And if the trial court did not abuse its discretion in making this determination, its judgment should be affirmed. {¶ 12} We also have little difficulty reaching the conclusion that the trial court's decision to dismiss the petition was within its discretion. The trial court's decision evaluated the record, as well as Fox's petition and evidentiary materials, and concluded that there were insufficient facts presented to support his claims. We have similarly reviewed the record and postconviction evidence submitted, and observe: (1) that Fox rejected the proffered plea agreement on the record following a detailed back-and-forth discussion with the trial court, see Decision at 2-3; (2) that Fox's petition contained no evidence other than bare allegations to support its claims that trial counsel had failed to adequately investigate the crime scene; (3) that defendant and the state had entered into a stipulation at trial regarding the trajectory of the bullet; (4) that there was no clear basis to suggest that counsel's witness preparation of Elaine Robinson was inadequate; (5) that Fox's testimony was sufficient to establish his claims of injury and to support his claim of accidental weapon  9 No. 19AP-677 discharge; (6) that there is no evidence to suggest that Fox was prejudiced by the decision to forego calling Mary Griffin's doctor as a witness since the bullet's trajectory through her right thigh and buttock is undisputed; (7) that Fox wholly failed to show how he was prejudiced by trial counsel's alleged failure to hire a private investigator; (8) that Fox failed to demonstrate how a ballistics expert would have benefited his defense; (9) that Fox's own testimony rendered any "gun expert" unnecessary; (10) that a jury instruction for misdemeanor reckless assault would have been inconsistent with Fox's own testimony and accident defense; (11) that counsel's decisions regarding the presentation of evidence were within the realm of a sound trial strategy; and (12) that Fox consented to and approved each continuance entry and waiver of his right to speedy trial on the record. {¶ 13} In short, we believe that the trial court correctly evaluated the evidentiary materials with which it had been provided. When viewed in light of the evidence presented at trial, we cannot say that the trial court abused its discretion in determining that Fox failed to present "evidence containing sufficient operative facts that demonstrate [Fox's] constitutional rights were violated," Decision at 5, and disposing of his petition without a hearing. For all these reasons, Fox's three assignments of error are overruled, and the judgment of the trial court dismissing his postconviction petition is affirmed. Judgment affirmed. DORRIAN and BRUNNER, JJ., concur.

2020-12-03 18:08:14.12348+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=56609&csIID=56609&deLinkID=798009&onBaseDocumentNumber=20-43719

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2020-12-03 18:16:21.294601+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5519.pdf

[Cite as State v. Connor, 2020-Ohio-5519 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellant, : No. 19AP-358 v. : (C.P.C. No. 18CR-771) Raymond Conner, : (REGULAR CALENDAR) Defendant-Appellee. : D E C I S I O N Rendered on December 3, 2020 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant. On brief: Yeura R. Venters, Public Defender, and Robert D. Essex, for appellee. APPEAL from the Franklin County Court of Common Pleas BRUNNER, J. {¶ 1} Plaintiff-appellant, State of Ohio, appeals a sentence of three years of community control imposed by the trial court following a plea by defendant-appellee, Raymond Conner, to one count of burglary and one count of failure to appear. Because we find that the trial court's discussion, in the context of the full record, adequately shows that it considered the seriousness of the offense and the likelihood of whether the defendant would recidivate or more simply put, go back to bad behavior, we are unable find, "clearly and convincingly," that "the record does not support the sentencing court's" judgment. R.C. 2953.08(G)(2)(a). We therefore overrule the State's assignment of error and affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 2} On February 15, 2018, a Franklin County Grand Jury indicted Conner for one count of aggravated burglary. (Feb. 15, 2018 Indictment.) According to the undisputed statement of facts offered in support of Conner's eventual guilty plea, the indictment No. 19AP-358 2 stemmed from an incident in which Conner kicked in the back door of his ex-girlfriend's residence, entered, threatened to "fuck [her] up," and then left. (Apr. 2, 2019 Plea Hearing Tr. at 12, filed June 26, 2019.) After initially pleading "not guilty" and then failing to appear on one occasion, Conner agreed to plead guilty to a stipulated lesser offense of burglary and an additional count of failure to appear. (Feb. 23, 2018 "Not Guilty" Plea Form; Apr. 2, 2019 "Guilty" Plea Form; Apr. 2, 2019 Plea Hearing Tr. at 13-14.) {¶ 3} The trial court held a sentencing hearing on May 3, 2019. (May 3, 2019 Sentencing Hearing Tr., filed June 26, 2019.) During the hearing the State argued that, although the victim was traveling and unavailable to be present or speak at the hearing, the victim had indicated that she was terrified of Connor and asked the court to imprison him for her protection. Id. at 2-4. The defense presented arguments and statements by Conner and his mother to the effect that the offense was the result of intoxication and anger issues, that Conner had sought treatment for both problems, and that he would not, as a result of these efforts, be likely to reoffend. Id. at 4-10. The trial court agreed that the offense was a result of Conner's anger issues, power issues as relates to women in his life, and alcohol problems. Id. at 12-13. Rather than impose prison, the trial court imposed community control and informed Conner that if community control were revoked for failure to follow its conditions, Conner would serve a 4-year term of imprisonment on the burglary offense and a concurrent 18-month sentence on the failure to appear offense. Id. at 10-12. Conner's term of community control required was for 3 years of intensive supervision involving, and among other requirements, that he stay away from his ex-girlfriend, serve a to-be- determined length of time at a Community Based Correctional Facility ("CBCF"), submit to urine screens, maintain employment, and attend behavior programs, domestic violence counseling, and 3 Alcoholics Anonymous meetings per week. Id. {¶ 4} At the request of the State, before issuing a judgment entry in the case, the trial court reconvened to more explicitly explain its reasoning for placing Conner on community control rather than outright sentencing him to a prison term. (May 15, 2019 Hearing Tr. at 2-3, filed June 26, 2019.) The Court had ordered and reviewed a pre- sentence investigation and at this hearing stated its reasoning for imposing community control: At the time of sentencing the first thing that the Court did review was the Ohio Risk Assessment tool as it related to No. 19AP-358 3 Mr. Conner. Mr. Conner's risk assessment score was a 23, which placed him in a moderate range risk for recidivism, also indicated that the most appropriate placement was with the chemical dependency caseload. And, granted, it was an offense that had a presumption for prison. The evaluation that was completed had indicated that even though it was a case where there was a presumption for prison that that presumption was not appropriate at this time. So what the Court did look at was Mr. Conner's prior criminal history. His prior criminal history, the only previous felony that he had been convicted of was a nonsupport of dependents case from 2012. He successfully completed community control in that case was my recollection of the information that had been provided to the Court. His prior convictions have all been misdemeanor offenses, disorderly conduct M4 back in 1995, disorderly conduct M1, but there's not an M1 disorderly conduct. I don't know if that's an MM or M4, but disorderly conduct 1998. There was a domestic violence conviction in '05, violation of protection order in '05, disorderly conduct in '10, and then the nonsupport in '12. So in looking at the risk assessment tool and then the factors that the Court needed to consider, the Court found that the recidivism factors as well as the ORAS ruled in favor of community control and against incarceration. The only seriousness factor was the relationship with the victim did facilitate the offense. So taking into consideration the defendant's prior criminal history, one prior felony offense in which he successfully completed community control, the moderate score on the risk assessment tool of 23, indicating that a moderate risk of recidivism, is the reason why the Court ultimately agreed to have -- well, not agreed, but the reason why the Court placed Mr. Conner in Community Based Correctional Facility program. All right. Is there anything else that the State would like to add on the record based upon what the Court has indicated at this time. [PROSECUTION]: No, Your Honor. Thank you for your time. Id. at 3-5. No. 19AP-358 4 {¶ 5} The State now appeals the sentence imposed by the trial court. See R.C. 2953.08(B)(1). II. ASSIGNMENT OF ERROR {¶ 6} The State presents a single assignment of error for review. THE TRIAL COURT ERRED IN IMPOSING COMMUNITY CONTROL WHEN IT FAILED TO MAKE THE REQUIRED FINDINGS FOR OVERCOMING THE PRESUMPTION OF PRISON. III. DISCUSSION {¶ 7} In sentencing a defendant for a second-degree felony, a trial court must consider division (D) of R.C. 2929.13, which provides in relevant part: (1) [F]or a felony of the * * * second degree * * * it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code. * * * (2) Notwithstanding the presumption established under division (D)(1) of this section * * * the sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a felony of the * * * second degree * * * if it makes both of the following findings: (a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. (b) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender's conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender's conduct was more serious than conduct normally constituting the offense. R.C. 2929.13(D). No. 19AP-358 5 {¶ 8} In reviewing an appeal regarding whether a trial court made required sentencing findings, an appellate court "shall review the record, including the findings underlying the sentence or modification given by the sentencing court." R.C. 2953.08(G)(2). The Ohio Revised Code then explains the standard of review: * * * The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. Id. As we have previously explained, this statute requires that we essentially analyze " '(1) whether the trial court expressly made the required findings, and (2) whether we determine by clear and convincing evidence that the record does not support those findings or is otherwise contrary to law.' " State v. Will, 10th Dist. No. 18AP-759, 2019-Ohio-3906 , ¶ 13, quoting State v. Fisher, 10th Dist. No. 13AP-236, 2013-Ohio-4063 , ¶ 7, citing State v. Milhoan, 10th Dist. No. 13AP-74, 2014-Ohio-310 , ¶ 16. If we find the standard to be met, we are empowered to "increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing." R.C. 2953.08(G)(2). {¶ 9} The State does not contend that the sentence in this case is contrary to law in the sense of not being within the authorized range permitted for the offenses of conviction. R.C. 2953.08(G)(2)(a). Rather, the State's concern is that the trial court failed to make the findings necessary to justify its decision not to impose a prison term and that the record does not support such findings. R.C. 2953.08(G)(2)(b). We have frequently "recognize[d] that the mandatory sentencing guidelines do not require talismanic words from the sentencing court. Nevertheless, it must be clear from the record that the trial court engaged in the appropriate analysis." State v. Overmyer, 10th Dist. No. 09AP-945, 2010-Ohio- 2072, ¶ 7. Thus, the question we must answer is whether the record indicates that the trial court considered the recidivism and seriousness factors and justifiably concluded that the factors indicating that Conner was less likely to recidivate than more likely to do so and that No. 19AP-358 6 the record supports a finding that the offense was of less serious form among similar offenses than a more serious form. See Will at ¶ 13; R.C. 2953.08(G)(2)(a); R.C. 2929.13(D)(2)(a) and (b). {¶ 10} The recidivism factors set out in R.C. 2929.12 are as follows: (D) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes: (1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing; was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code; was under post- release control pursuant to section 2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a prior offense pursuant to division (B) of section 2967.16 or section 2929.141 of the Revised Code; was under transitional control in connection with a prior offense; or had absconded from the offender's approved community placement resulting in the offender's removal from the transitional control program under section 2967.26 of the Revised Code. (2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has a history of criminal convictions. (3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions. (4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse. (5) The offender shows no genuine remorse for the offense. (E) The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes: No. 19AP-358 7 (1) Prior to committing the offense, the offender had not been adjudicated a delinquent child. (2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense. (3) Prior to committing the offense, the offender had led a law- abiding life for a significant number of years. (4) The offense was committed under circumstances not likely to recur. (5) The offender shows genuine remorse for the offense. It is apparent in this case that the trial court did not explicitly discuss each of the factors set out in R.C. 2929.12 related to the issue of recidivism. (May 3, 2019 Sentencing Hearing Tr. in passim; May 15, 2019 Hearing Tr. in passim.) {¶ 11} The record shows, however, that, although the trial court uttered no talismanic words to quote or invoke the factors, the court considered the issues related to the statutory factors. The trial court acknowledged that Conner had a history of criminal convictions. (May 15, 2019 Hearing Tr. at 3-4.) R.C. 2929.12(D)(2) and (E)(2). But it noted that the convictions were minor and quite old at the time of sentencing and that Conner had performed well on supervision before, contrary to division (D)(3) and (D)(1). (May 15, 2019 Hearing Tr. at 3-4.) R.C. 2929.12(D)(1) and (3). Although the trial court acknowledged that alcohol abuse appeared to have been related to the offense, the sentencing hearing transcript indicates that Conner acknowledged the problem and had sought treatment for both that problem and his anger issues, thus rendering division (D)(4) inapplicable. (May 3, 2019 Sentencing Hearing Tr. at 8-13.) R.C. 2929.12(D)(4). In other words, only the fact that Conner had prior convictions suggested he was likely to recidivate. {¶ 12} The trial court remarked about the age of Conner's convictions, suggesting he had been living a more law abiding life in recent years. (May 15, 2019 Hearing Tr. at 3-4.) R.C. 2929.12(E)(3). Likewise, though the trial court did not expressly address whether the circumstances of the offense were such that it was not likely to reoccur, it did find that Conner's alcohol and anger issues were causes of the offense and determined to assist Conner with directly addressing these issues with intensive community control supervision and intensive programming requirements, including placement in the CBCF, which we acknowledge is a facility involving confinement for which jail-time credit is afforded. State No. 19AP-358 8 v. Napier, 93 Ohio St.3d 646 , 648 (2001). Because the trial court imposed these conditions of community control, the record supports that the trial court believed that this combination of conditions and expenditure of state resources suggested he would be less likely to reoffend. (May 15, 2019 Hearing Tr. at 3; May 3, 2019 Sentencing Hearing Tr. at 11-13.) R.C. 2929.12(E)(4). {¶ 13} Though the trial court did not specifically comment on it, but instead imposed intensive supervision with strict conditions, including placement in CBCF, Conner's frank expression of remorse for his actions were evidence of his motivation to change that the trial court took into account when setting the conditions of community control. (May 3, 2019 Sentencing Hearing Tr. at 8.) R.C. 2929.12(D)(5), and (E)(5). In short, the record makes clear that the trial court considered the recidivism factors and concluded that with appropriate community supervision, the factors "indicating a lesser likelihood of recidivism outweigh[ed] the applicable factors * * * indicating a greater likelihood of recidivism," as supported by the record. R.C. 2929.13(D)(2)(a) and 2953.08(G)(2)(a). {¶ 14} The seriousness factors set forth in R.C. 2929.12 are these: (B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense: (1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim. (2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. (3) The offender held a public office or position of trust in the community, and the offense related to that office or position. (4) The offender's occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice. (5) The offender's professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others. No. 19AP-358 9 (6) The offender's relationship with the victim facilitated the offense. (7) The offender committed the offense for hire or as a part of an organized criminal activity. (8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion. (9) If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children. (C) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is less serious than conduct normally constituting the offense: (1) The victim induced or facilitated the offense. (2) In committing the offense, the offender acted under strong provocation. (3) In committing the offense, the offender did not cause or expect to cause physical harm to any person or property. (4) There are substantial grounds to mitigate the offender's conduct, although the grounds are not enough to constitute a defense. {¶ 15} Most of the seriousness factors to be considered did not apply in Conner's case. The record does not show that the victim, who did not attend the sentencing hearing, suffered serious physical, psychological, or economic harm from Conner's actions, or that such harm was worsened by her age or physical or mental condition (although the prosecutor stated at the sentencing hearing that she was terrified of him, the prosecutor's statement being the only indication of mental harm). (May 3, 2019 Sentencing Hearing Tr. at 2-4.) R.C. 2929.12(B)(1) and (2). Conner did not occupy a position of trust or office in relation to the offense. R.C. 2929.12(B)(3) through (5). Although the trial court remarked that his relationship with the victim facilitated the offense and although a prior romantic No. 19AP-358 10 relationship with the victim may have motivated the offense, the prior relationship would not have "facilitated"1 this offense. There is no evidence that he, for example, had a key to her place, or that he was staying there. After he kicked in her door and entered, he shouted a threat and then walked away. (May 15, 2019 Hearing Tr. at 4.) R.C. 2929.12(B)(6). Nor was the offense a hate crime, part of organized crime, or a crime involving a household member. R.C. 2929.12(B)(7) through (9). The trial court's recognition of the fact of the prior relationship as a seriousness factor points only to the identity of the victim, but nothing appears in the record that the former relationship facilitated any other aspect of the crime. The record essentially does not support any seriousness factor listed in R.C. 2929.12(B). {¶ 16} Regarding the factors that show the offense was less serious, there is no indication in the record that Conner was provoked or that the victim induced or facilitated the offense, rendering those mitigating factors inapposite. R.C. 2929.12(C)(1) and (2). There is also no indication in the record that Conner went to the victim's house that day expecting to cause harm to persons or property and it is not clear from the record whether the acts of kicking the door open in a drunken state and then yelling threats actually caused any "physical harm" to the door or the victim, except to create fear. (May 3, 2019 Sentencing Hearing Tr. at 4; Apr. 2, 2019 Plea Hearing Tr. at 12.) R.C. 2929.12(C)(3). The trial court's acknowledgement of Conner's prior misdemeanors indicates that the court considered this offense in light of his past criminal behavior and did not see an appreciable escalation in the facts as agreed to by the parties. The statement of facts in the record and the trial court's statement about Conner's criminal history support a finding by the court that Conner "did not cause or expect to cause physical harm to any person or property." R.C. 2929.12(C)(3) {¶ 17} R.C. 2929.12(B) through (E) also permits a court to consider "any other relevant factors" and, with respect to mitigation in particular, whether there were "other substantial grounds to mitigate" the offense. R.C. 2929.12(C)(4). Under that broad authority to consider mitigation and "any other relevant factors," the record supports the view that this was not an especially serious form of burglary. Drunkenly kicking in the door 1 "Facilitate" is defined as, "[t]o make (an action, process, etc.) easy or easier; to promote, help forward; to assist in bringing about (a particular end or result)." OED Online, Oxford University Press, September 2020, www.oed.com/view/Entry/67460 (accessed Dec. 2, 2020). No. 19AP-358 11 of an individual with whom Conner has previously been romantically involved to yell threats and obscenities is criminal behavior. But when that conduct is considered on the spectrum of what constitutes the crime of burglary, that incident is substantially less serious than other cases (in which, for example, an offender would enter a home and inflict injury or rob). {¶ 18} Despite the fact that the trial court construed one of the seriousness factors to be present, the record supports the view that none of the factors indicated that the offense was more serious than usual form of the crime at that level of felony. See supra at ¶ 15. The record also supports that the trial court recognized as many as two factors were present showing that the offense was of a less serious variety. See supra at ¶ 16-17. Granted, the trial court could have been more explicit. However, we cannot find "clearly and convincingly" that "the record does not support the sentencing court's findings" when it chose not sentence Conner to prison. R.C. 2953.08(G)(2)(a). That is, under R.C. 2953.08(G)(2)(a), R.C. 2929.13(D), and R.C. 2929.12(B) through (E), the record adequately demonstrates that the trial court analyzed and considered the statutory factors to overcome the presumption of prison as to the offense being a less serious form of the offense. R.C. 2953.08(G)(2)(a); see also R.C. 2929.13(D)(2)(b). {¶ 19} The State's sole assignment of error is overruled. IV. CONCLUSION {¶ 20} The trial court's discussion in the context of the full record was sufficient to demonstrate its findings that the defendant, under intensive supervision, a CBCF sentence and intensive programmatic conditions was not likely to reoffend and that the offense was not among the more serious forms of the offense. We cannot conclude "clearly and convincingly" from the court's record that the sentencing court's judgment and findings did No. 19AP-358 12 not overcome the presumption of prison. We therefore overrule the State's assignment of error and affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BEATTY BLUNT, J., concurs. BROWN, J., dissents. BROWN, J., dissenting. {¶ 21} Being unable to concur with the majority's determination that the trial court made the necessary findings required to impose a community control sentence, I respectfully dissent. {¶ 22} In order to overcome the presumption in favor of a prison term and to impose a community control sanction, the sentencing court is required to make "two findings." State v. Murnahan, 2d Dist. No. 2018-CA-6, 2018-Ohio-4762 , ¶ 12. See also State v. Milhoan, 10th Dist. No. 13AP-74, 2014-Ohio-310 , ¶ 6 (sentencing court must make both of the findings under R.C. 2929.13(D)(2)(a) and (b) "before it may deviate from the presumption that a prison term should be imposed"). First, "the court must find that a community-control sanction 'would adequately punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.' " Murnahan at ¶ 12, quoting R.C. 2929.13(D)(2)(a). Second, "the court must find that a community-control sanction 'would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender's conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender's conduct was more serious than conduct normally constituting the offense.' " Id., quoting R.C. 2929.13(D)(2)(b). {¶ 23} Because appellee was convicted of a second-degree felony, there was a presumption in favor of a prison term. In addressing that presumption, the trial court noted during the sentencing hearing that appellee had a moderate range of risk assessment score (of 23), that he had one prior felony, and that he had misdemeanor convictions for disorderly conduct, domestic violence, and violation of a protection order. The court cited appellee's "prior criminal history," as well as the "moderate score on the risk assessment No. 19AP-358 13 tool," as the reason why it was placing him in a community based correctional facility. (May 26, 2019 Tr. at 4.) {¶ 24} On review of the record, I agree with the state that the trial court's findings fall short of those required by statute. As to the recidivism factors, while the trial court cited appellee's prior criminal history and moderate risk score as the basis for not imposing a prison term, the court did not make the finding required by R.C. 2929.13(D)(2)(a) that a community sanction would adequately punish appellee and protect the public from future crime (i.e., because the applicable factors under R.C. 2929.12 indicating a lesser likelihood of recidivism outweigh the applicable factors indicating a greater likelihood of recidivism). See, e.g., State v. Fisher, 10th Dist. No. 13AP-236, 2013-Ohio-4063 , ¶ 8 (remanding for resentencing to comply with statutory sentencing guidelines; although trial court "found that defendant has 'a low risk of potentially reoffending,' which indicates the court considered he had a lesser likelihood of recidivism, the court did not make the finding required by R.C. 2929.13(D)(2)(a) that the community control sanction would adequately punish the offender and protect the public from future crime"). {¶ 25} With respect to the seriousness factors under R.C. 2929.12(B) and (C), the trial court found the only applicable "more serious" factor to be that the offender's relationship with the victim facilitated the offense (under R.C. 2929.12(B)(6)). The court, however, did not discuss any of the less serious factors under R.C. 2929.12(C), nor did the court make the finding under R.C. 2929.13(D)(2)(b) that the community control sanction would not demean the seriousness of appellee's offense (i.e., because one or more of the factors indicating appellee's conduct was less serious than conduct normally constituting the offense are applicable and that they outweigh the applicable factors indicating that the conduct was more serious than conduct normally constituting the offense). See, e.g., State v. Martin, 10th Dist. No. 08AP-1103, 2009-Ohio-3485 , ¶ 7 (remanding matter for resentencing; although trial court "said at the sentencing hearing that community control 'is the best way to protect the public,' the court did not find that, under the R.C. 2929.12 factors, a community control sanction would adequately punish appellee and protect the public from future crime," nor did the court "find at the sentencing hearing that, under the R.C. 2929.12 factors, a community control sanction would not demean the seriousness of appellee's offense"). No. 19AP-358 14 {¶ 26} While this court has noted "the mandatory sentencing guidelines do not require talismanic words from the sentencing court," we have "[n]evertheless" found that "it must be clear from the record that the trial court engaged in the appropriate analysis." State v. Overmyer, 10th Dist. No. 09AP-945, 2010-Ohio-2072 , ¶ 7. In the present case, because a review of the sentencing hearing indicates the trial court did not make either of the two findings as required by R.C. 2929.13(D)(2)(a) and (b) (i.e., that a sentence of community control would adequately punish the offender and protect the public from future crime, and not demean the seriousness of the offense) in order to overcome the presumption of incarceration, "it is not clear that the trial completed the required analysis." Id. Accordingly, I would sustain the state's assignment of error and remand for resentencing for the trial court to make the necessary statutory findings.

2020-12-03 18:08:14.221895+00

http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=45988&csIID=45988&deLinkID=798003&onBaseDocumentNumber=20-43713

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2020-12-03 18:16:21.587779+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5518.pdf

[Cite as State v. Banks, 2020-Ohio-5518 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 19AP-256 v. : (C.P.C. No. 17CR-3814) James W. Banks, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on December 3, 2020 On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee. On brief: Brian J. Rigg, for appellant. APPEAL from the Franklin County Court of Common Pleas BEATTY BLUNT, J. {¶ 1} Defendant-appellant, James W. Banks, appeals the jury verdict of the Franklin County Court of Common Pleas finding him guilty of one count of sexual battery upon a substantially impaired person and the court's judgment sentencing him to four years incarceration. He asserts that the trial court wrongly denied his motion for judgment of acquittal pursuant to Crim.R. 29 and that his conviction is against the manifest weight of the evidence. {¶ 2} A.H. is an alumnus of Ohio Wesleyan University in Delaware, Ohio. On May 19, 2017, she and some friends traveled to Delaware to attend a class reunion, where they planned to stay the weekend in a university dorm room they had rented. (Feb. 26, 2019, Tr. Vol. II at 179-80). That evening, A.H. and her friends went to a dinner in the campus center, where she consumed three or four glasses of wine. Id. at 180-81. Afterwards, they returned to their room to change clothes and proceeded to a nearby campus bar, The  2 No. 19AP-256 Backstretch. Id. at 182. A.H. remembers that several of the servers who had worked at the dinner were present at The Backstretch. Id. at 185. Banks was apparently one of the servers at the earlier dinner, and he was there that night with a friend. Id. at 269-74. A.H. recalls arriving at the bar and ordering a Bud Light, but she has no memories of anything occurring after that point until the following morning. Id. at 186. She specifically did not remember engaging in sexual activity with anyone. {¶ 3} A.H. awoke the next morning in an unfamiliar hotel room, naked, confused, and sick. She also felt like her vagina had been sexually penetrated, although she did not remember having sexual activity with anyone. Id. at 192-93. Mr. Banks was in the room and asked her if she wanted to share an Uber back to the Ohio Wesleyan campus. A.H. declined. Id. at 188. She also refused to give Banks a hug, but shook his hand. As soon as Banks left the room, she called one of her friends, A.G. Id. {¶ 4} Unbeknownst to A.H., the hotel room turned out to be located in Columbus, and A.G. drove from Delaware to come pick her up. When A.G. arrived at the room, she found it in disarray, and found A.H. in shock and having locked herself in the bathroom "because she wanted to make sure that she was safe." Id. at 278. A.G. helped A.H. gather her things and check out of the room. A.H. left her underwear behind because they were soaking wet. Id. at 279-80. A.H. felt sick, and she was sore and uncomfortable in her vaginal area. A.H. testified at trial that on that morning she did not recognize Banks from the prior night, and had never previously met him. Id. at 202. {¶ 5} After A.G. picked up A.H. and took her back to the dorm room to change clothes, she and A.H. went to Grady Memorial Hospital in Delaware. Id. at 193-94. At the hospital, A.H. was evaluated by a sexual assault nurse examiner, or "SANE" nurse. The SANE nurse testified at trial regarding the examination at Banks' trial and noted several unexplained injuries she observed on A.H.'s body during the exam, including one near her vaginal area. Id. at 352-55. Additionally, DNA taken from A.H.'s vagina was subjected to Y- STR testing and compared to a DNA sample provided by Banks, and he could not be excluded as a contributor of that material. (Feb. 27, 2019, Tr. Vol. III at 504-05). A second male DNA profile was also found, but there was an inadequate amount of the sample to analyze. {¶ 6} A.G. testified at trial that she and A.H. subsequently discovered that although A.H.'s credit card had been used to pay for the room, that the room had been reserved by  3 No. 19AP-256 Banks under his name and email address. (Tr. Vol II at 281-83). A.G. also testified that Banks was with them at The Backstretch, that he had purchased a round of alcohol shots for them, and that they stopped spending time with him when he made a remark that made both of them feel uncomfortable. Id. A.G. testified that she lost track of A.H. at some point after 11 p.m., and did not see her again until she drove to the hotel room the following morning, even though she and A.H. had planned to spend the entire weekend together on the Ohio Wesleyan campus. {¶ 7} The hotel's overnight housekeeper testified that she never saw A.H., but that she had rented a hotel room to Banks at some point between midnight and 1 a.m. She testified that the only unoccupied and unbroken room was a "dirty room" that had not been fully made up after the previous occupants and that she was not permitted to rent it out. Id. at 233. Banks claimed to have a prior reservation for a room and showed her a confirmation number on a phone, and proceeded to pressure her into renting the room to him because he claimed to have a drunk female friend in the car who needed a place to stay. Id. at 225. She stated that although she repeatedly attempted to dissuade him from renting the room and told him several times that she could not rent him a "dirty room," he insisted on staying in the room even after she showed him the room itself, which had not been made up. Id. at 233-34. {¶ 8} The interaction between the housekeeper and Banks was captured on security video, without sound. Banks can be seen entering the lobby, summoning the overnight housekeeper by calling from an internal phone, pacing the lobby, looking at his cell phone, peeping out the lobby window, conversing with the housekeeper when she arrived, showing her a cellular phone, and leaning over the counter to look at her computer multiple times. At one point, Banks jumps up and down and appears to briefly leave the lobby through the front door. Eventually, he and the housekeeper leave the lobby together and appear to enter the main hotel. They return after about two minutes and continue the discussion at the front desk. Banks appears to joke around with the clerk, and eventually another person enters the lobby. After a few additional moments it appears that Banks is able to conclude his discussion with the housekeeper, and he exits through the front door. The entire video is less than twenty minutes long. (See generally State's Ex. B) {¶ 9} The defense did not call any witnesses, and the trial court denied its motion for a judgment of acquittal pursuant to Crim.R. 29. (Tr. Vol. III at 532-33). The case was  4 No. 19AP-256 submitted to the jury for decision and, following approximately five hours of deliberations, the jury found Banks guilty of one count of sexual battery, a felony of the third degree. The court ordered a presentence investigation, and subsequently sentenced Banks to four years of incarceration and informed him that he was being classified a Tier III sexual offender with a lifetime reporting and registration requirement. This timely appeal followed, and Banks now asserts two assignments of error. {¶ 10} In the first assignment of error, he argues that the trial court erred by denying his Crim.R. 29(A) motion. "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman, 55 Ohio St.2d 261 , syllabus (1978). The Bridgeman standard is essentially identical to the standard for "sufficiency of the evidence" announced in State v. Jenks, 61 Ohio St.3d 259 , paragraph two of the syllabus (1991), and "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. (following Jackson v. Virginia, 443 U.S. 307 , 319 (1979)). {¶ 11} Here, the essential elements of sexual battery include: (1) "sexual conduct with another," which is defined in R.C. 2907.01(A) as vaginal, anal, or oral penetration, however slight, or the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another without privilege to do so; (2) that the other is "not the spouse of the offender," and (3) that "the offender knows that the other person's ability to appraise the nature of or control of the other person's own conduct is substantially impaired" or that "the offender knows that the other person submits because the other person is unaware that the act is being committed." R.C. 2907.03(A)(2) and (A)(3). "[A] jury can reasonably conclude that a defendant has knowledge of the victim's substantial impairment and inability to control his/her conduct for purposes of sexual battery under R.C. 2907.03(A)(2) when the evidence shows that the victim was in a state of deep sleep or drunkenness and did not consent to intercourse." State v. Branch, 10th Dist. No. 00AP-1219, 2001 Ohio App. LEXIS 2304 , *5 (May 24, 2001). Here, the evidence is basically uncontroverted that A.H. was intoxicated, and her testimony as well as the testimony of her friend A.G. was sufficient for a reasonable juror to conclude  5 No. 19AP-256 both that A.H.'s ability to appraise and control her conduct was substantially impaired and that she submitted to sexual conduct with Banks because she was unaware that any such conduct occurred. She recalled arriving at the bar with her friends and ordering a drink, but has no other memories of the night of the incident. And the evidence was also sufficient for a reasonable juror to conclude that Banks was aware of her status, as he made admissions to the hotel housekeeper that he knew A.H. was drunk apparently to the point of incapacitation. Finally, the testimony of the SANE nurse and the Columbus Crime Law expert who did the DNA analysis provide sufficient uncontroverted evidence that Banks engaged in vaginal intercourse with A.H. for a reasonable juror to conclude such activity occurred. {¶ 12} Therefore, the state presented sufficient evidence for reasonable minds to reach different conclusions as to whether each material element of sexual battery under R.C. 2901.03 was proven beyond a reasonable doubt, and the trial court did not err by denying the motion for judgment of acquittal. We hold that Banks' conviction is supported by sufficient evidence and his first assignment of error is accordingly overruled. {¶ 13} Banks' second assignment of error argues that his conviction was against the manifest weight of the evidence presented at trial. Determinations of credibility and weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury may take note of inconsistencies at trial and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958 , ¶ 21, citing State v. Antill, 176 Ohio St. 61 , 67 (1964). Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380 , 387 (1997), superseded by constitutional amendment on other grounds, and quoting Tibbs v. Florida, 457 U.S. 31 , 42 (1982). An appellate court considering a manifest weight challenge "may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501 , ¶ 22, citing  6 No. 19AP-256 Thompkins at 387. Appellate courts should reverse a conviction as being against the manifest weight of the evidence only in the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172 , 175 (1st Dist.1983). {¶ 14} We have thoroughly reviewed the record, and it simply cannot be said that this is the exceptional case justifying a reversal based upon the weight of the evidence. All of the witnesses were credible and their testimonies were consistent with each other, the physical and documentary evidence supported the jury's verdict, and there are no reasonable doubts on this record as to the jury's decision. The jury reasonably concluded that Banks is guilty of the offense of sexual battery beyond a reasonable doubt. Therefore, we overrule Banks' second assignment of error. Having overruled Banks' two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. KLATT and BRUNNER, JJ., concur.

2020-12-03 18:16:21.893041+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5523.pdf

[Cite as State ex rel. Jones v. State, 2020-Ohio-5523 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State ex rel. James Jones, : Relator, : v. : No. 20AP-204 State of Ohio, : (REGULAR CALENDAR) Respondent. : D E C I S I O N Rendered on December 3, 2020 James Jones, pro se. IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION NELSON, J. {¶ 1} Relator James Jones entered a guilty plea to one count of trafficking in cocaine in violation of R.C. 2925.03. See May 17, 2019 Judgment Entry, Franklin C.P. No. 18CR-3064. He later filed an original action here seeking a writ of mandamus ordering the Franklin County Court of Common Pleas to rule on his September 20, 2019 motion to vacate or set aside that judgment. Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate. On April 14, 2020, the magistrate rendered the decision, including findings of fact and conclusions of law, that we append. Mr. Jones has filed an objection to the magistrate's decision. Pursuant to Civ.R. 53(D)(4)(d), we undertake "an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." {¶ 2} The magistrate recommends dismissing the action because Mr. Jones failed to comply with R.C. 2969.25(C), which states: " If an inmate who files a civil action or appeal against a government entity or employee seeks a waiver of the prepayment of the full filing No. 20AP-204 2 fees assessed by the court in which the action or appeal is filed, the inmate shall file with the complaint or notice of appeal an affidavit that the inmate is seeking a waiver of the prepayment of the court's full filing fees and an affidavit of indigency." The inmate must also attach "a statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier." R.C. 2969.25(C)(1). Although Mr. Jones filed an affidavit, the magistrate notes that he "failed to attach thereto a copy of the amounts in his inmate account as certified by the institutional cashier for the six months preceding the date he filed this mandamus action." April 14, 2020 Magistrate's Decision at 1. Because compliance with the statutory requirements is "mandatory" and Mr. Jones "cannot cure this deficiency now or at a later date," the magistrate recommends dismissing the action. Id. at 2-3. {¶ 3} In his objections, Mr. Jones concedes that he "cannot cure this deficiency by attempting to comply with the statutory requirements after the fact," but argues that the statute should not operate as "a shield to protect the blameworthy." May 11, 2020 Objection at 1. He essentially argues that compliance with the statute should be selective, as a matter of judicial discretion, and not enforced in his particular case; he argues that R.C. 2969.25(C) should "be applied in particular situations as fairness and justice require, and that it is not to be applied to[o] rigidly as to defeat the ends of justice." Id. Thus, he argues that the trial court's "lack of action" in ruling on his motion should excuse his failure to meet the requirements of R.C. 2969.25(C). Id., citing Sup.R. 40(A)(3). {¶ 4} Our independent review of this matter leads us to the same conclusion as that reached by the magistrate. In the affidavit he filed with the complaint, Mr. Jones avers that he is "without the necessary funds to pay the costs of this action" because he "only receive[s] twelve dollars ($12) per month in State Pay, and [has] no other means or assets." April 8, 2020 Affidavit of Indigence. Yet he provides no "statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier," as required by R.C. 2969.25(C)(1). Under governing precedent, this defect "warrant[s] dismissal of the complaint." State ex rel. Pamer v. Collier, 108 Ohio St.3d 492 , 2006-Ohio-1507 , ¶ 5 (relator's "cashier statement did not set forth the account balance for the month immediately preceding his mandamus complaint," as required by R.C. 2969.25(C)(1)). No. 20AP-204 3 {¶ 5} We note that even if Mr. Jones had properly complied with the statute, the trial court has overruled the motion to vacate since he filed this action. See May 13, 2020 Decision and Entry Denying Defendant James Jones' Motion to Vacate or Set Aside Judgment Filed September 20, 2019, Franklin C.P. No. 18CR-3064. His request for a writ of mandamus therefore would be moot. See State ex rel. Cockroft v. McIntosh, 10th Dist. No. 15AP-874, 2016-Ohio-4639 , ¶ 34 (denying request for writ of procedendo and dismissing action as moot, as trial court had "performed the act which this court ordered respondent to perform and, in so doing, has already performed the act which relator seeks to compel by way of his procedendo action"). {¶ 6} We overrule Mr. Jones's objection and accept the magistrate's recommendation to dismiss this action, although we decline the recommendation to order Mr. Jones to pay costs. In all other respects we adopt the magistrate's decision. We dismiss the action. Objection overruled; action dismissed. SADLER, P.J., and DORRIAN, J., concur. _________________ No. 20AP-204 4 APPENDIX IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State ex rel. James Jones, : Relator, : v. : No. 20AP-204 State of Ohio, : (REGULAR CALENDAR) Respondent. : MAGISTRATE'S DECISION Rendered on April 14, 2020 James Jones, pro se. IN MANDAMUS ON SUA SPONTE DISMISSAL {¶ 7} Relator, James Jones, has filed this original action requesting this court issue a writ of mandamus ordering respondent, a judge of the Franklin County Court of Common Pleas, to rule on the motion to vacate which relator filed in his underlying criminal case on September 20, 2019. Findings of Fact: {¶ 8} 1. Relator is an inmate currently incarcerated at Noble Correctional Institution. {¶ 9} 2. On April 8, 2020, relator filed this mandamus action. {¶ 10} 3. At the time he filed this mandamus action, relator filed an affidavit of indigency; however, relator failed to attach thereto a copy of the amounts in his inmate account as certified by the institutional cashier for the six months preceding the date he filed this mandamus action. No. 20AP-204 5 Conclusions of Law: {¶ 11} The magistrate recommends that this court sua sponte dismiss this action because relator has failed to comply with the requirements of R.C. 2969.25(C). {¶ 12} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish between paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and paying the fees pursuant to periodic deductions from the inmate's account maintained by the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on grounds of indigency must file an affidavit that includes: (1) a statement of the amount in the inmate's account for each of the preceding six months as certified by the institutional cashier, and (2) a statement of all other cash and things of value owned by the inmate. {¶ 13} Compliance with the provisions of R.C. 2969.25 is mandatory and failure to satisfy the statutory requirements is grounds for dismissal of the action. State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998); State ex rel. Alford v. Winters, 80 Ohio St.3d 285 (1997). {¶ 14} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492 , 2006-Ohio-1507 , the Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina County which had dismissed the complaint of George D. Pamer, an inmate at Mansfield Correctional Institution, for his failure to comply with the requirements of R.C. 2969.25(C). Specifically, the court stated: Pamer's cashier statement did not set forth the account balance for the month immediately preceding his mandamus complaint - August 2005. See R.C. 2969.25(C)(1), which requires an inmate filing a civil action against a government employee seeking waiver of prepayment of court filing fees to file a "statement that sets forth the balance in the inmate account for each of the preceding six months, as certified by the institutional cashier." Pamer's failure to comply with R.C. 2969.25(C)(1) warranted dismissal of the complaint. State ex rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio St.3d 195 , 2005-Ohio-6184 , 837 N.E.2d 777 , ¶ 5. Id. at ¶ 5-7. 1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges the inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's account (excluding the ten dollars) is forwarded to the clerk each month until the fees are paid. No. 20AP-204 6 {¶ 15} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260 , 2008- Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals which had dismissed the complaint filed by William L. Ridenour because of his failure to comply with R.C. 2969.25(C). In that case, Ridenour had filed a motion for reconsideration attaching a statement setting forth his inmate account balance for the six months preceding the filing of his complaint; however, the statement was not certified by the institutional cashier. {¶ 16} In affirming the judgment of the appellate court, the Supreme Court stated: "The requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate's action to dismissal." State ex rel. White v. Bechtel, 99 Ohio St.3d 11 , 2003-Ohio- 2262, 788 N.E.2d 634 , ¶ 5. Ridenour failed to comply with R.C. 2969.25(C)(1), which requires an inmate filing a civil action against a government employee seeking waiver of prepayment of court filing fees to file with the complaint a "statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier." Moreover, although Ridenour claims that the court erred in failing to grant him leave to amend his complaint to comply with R.C. 2969.25(C)(1), he never filed a motion to amend his complaint. Instead, he filed a motion for reconsideration, which was "a nullity because his mandamus action was filed originally in the court of appeals, rendering App.R. 26(A) inapplicable." State ex rel. Washington v. Crush, 106 Ohio St.3d 60 , 2005-Ohio-3675 , 831 N.E.2d 432 , ¶ 5. Id. at ¶ 5-6. {¶ 17} Pursuant to the above-cited authority and because relator cannot cure this deficiency now or at a later date, it is the magistrate's decision that this court should dismiss relator's complaint. Further, pursuant to the above-cited authority, inasmuch as relator did not prevail and did not establish indigency, this court should order relator to pay the costs of the proceedings. /S/ MAGISTRATE STEPHANIE BISCA No. 20AP-204 7 NOTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

2020-12-03 18:16:22.288818+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5520.pdf

[Cite as Sangeri v. Yerra, 2020-Ohio-5520 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Ashok K. Sangeri, : Plaintiff-Appellant, : No. 19AP-675 v. : (C.P.C. No. 17DR-4265) Sahitya Yerra, : (REGULAR CALENDAR) Defendant-Appellee. : N U N C P R O T U N C1 D E C I S I O N Rendered on December 3, 2020 On brief: Wood Long Family Law, and Jessica M. Wood, for appellant. Argued: Jessica M. Wood. On brief: Sanjay K. Bhatt, for appellee. Argued: Sanjay K. Bhatt. APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations BRUNNER, J. {¶ 1} Plaintiff-appellant, Ashok K. Sangeri, appeals from the judgment entry and final divorce decree entered by the Franklin County Court of Common Pleas, Division of Domestic Relations on September 4, 2019. For the following reasons, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 2} Sangeri and defendant-appellee, Sahitya Yerra, entered into an arranged marriage on April 17, 2016. No children were born as issue of the marriage. The parties separated just over one year after the marriage. On November 20, 2017, Sangeri filed a complaint for divorce. On February 10, 2018, Yerra filed her answer; she did not file a 1 This decision replaces the previous decision filed on December 1, 2020 that was not in final format. No. 19AP-675 2 counterclaim. On January 15, 2019, Sangeri filed an amended complaint to include, as an additional ground for divorce, that the parties were living separate and apart without cohabitation for more than one year. Yerra did not contest that allegation. {¶ 3} During the pendency of the case, Yerra filed a motion for temporary orders. Upon review of the parties' respective affidavits and in consideration of the parties' incomes, assets, and liabilities, the magistrate ordered Sangeri to pay spousal support in the amount of $1,500 per month for 8 months, commencing February 1, 2018. On June 21, 2019, the trial court denied Sangeri's motion for a de facto termination date of the marriage. {¶ 4} A contested two-day trial was conducted on June 25 and 26, 2019, before a judge of the Division of Domestic Relations. It is undisputed that the parties were married in India on April 17, 2016, and that their parents had brokered the marriage. At the time of their engagement, Yerra lived in India, whereas Sangeri was living in Columbus, Franklin County, Ohio and working for L-Brands, where he had been employed for approximately 8 years at that time. Sangeri earned $125,103 in 2016 and $126,900 in 2017 at L-Brands. {¶ 5} It also is undisputed that Yerra, after becoming engaged to Sangeri, came to the United States on a student visa and began her studies at New Hampshire University. Yerra testified she wanted to transfer to Indiana Technical University in order to be closer to Sangeri, but he did not agree to the transfer. {¶ 6} The parties dispute the basis for their marriage. Yerra asserted throughout her testimony her belief that she was fraudulently induced to marry Sangeri. She testified that, not long after their wedding, Sangeri told her he only married her so that his younger brother could marry. Yerra testified Sangeri and she returned to India for the wedding of Sangeri's younger brother. Thereafter, Sangeri told her that, with his brother's marriage accomplished, the purpose of their own marriage was over, and he was going to file for divorce. {¶ 7} Sangeri disputed Yerra's account of these events. He testified that he entered the marriage at his parents' instigation. He also testified that his brother did not meet the woman he later married until after Sangeri's engagement to Yerra. Sangeri testified that it was his understanding at the time he became engaged to Yerra that Yerra planned to come to the United States on a dependent visa until she could secure a student visa and attend the New Hampshire University. Sangeri testified that, after the parties' wedding in India, No. 19AP-675 3 they returned to the United States separately, about two days apart. Sangeri returned to Columbus, and Yerra returned to New Hampshire. Sangeri testified that the parties' relationship after their wedding was good, and that they spoke regularly and met many times. He testified that he noticed a shift in Yerra's attitude toward him when they went to India for his brother's wedding. He described their subsequent communications as argumentative and the marriage as "rocky." (June 25, 2019 Tr. at 40.) Sangeri testified his relationship with Yerra continued to deteriorate to the point that he told her he thought their marriage was over, and he felt she agreed. Sangeri testified that he sought legal advice to terminate the marriage in September 2017. He filed for divorce November 20, 2017. {¶ 8} Yerra testified that, while she was attending school in New Hampshire, she wanted to come to Columbus to visit Sangeri, but that Sangeri dissuaded her, claiming financial distress and refusing to pay for Yerra's travel to Columbus. Sangeri denied refusing to have Yerra visit but acknowledged he had not wanted to purchase the more expensive airline tickets for last-minute trips because it was a financially stressful time for him. {¶ 9} Yerra disputes Sangeri's claim of financial stress, testifying that he received income as a silent partner in an information technology service company, Telligen Tech. Sangeri denied being a silent partner in Telligen Tech or receiving income from it. He testified the company belonged to friends he helped out occasionally, even lending them substantial amounts of money while he was married to Yerra. He acknowledged the company has office locations at Airport Drive in Columbus, Ohio and in Hyderabad, India. Yerra also pointed to money Sangeri transferred to India, asserting the money was to pay Telligen Tech employees in India. Sangeri denied Yerra's assertion, testifying that the money transfers of $9,996 and $16,491 he made during the marriage were to his family and friends in India. {¶ 10} Yerra testified that, following her graduation from university, she continued to be in the United States on a student visa, on Optional Practical Training ("OPT") status. The expiration date of her OPT status was August 2020, with no guarantee that it would be renewed. Yerra's employment required her to live in the New York/New Jersey area. She testified that her net income was $4,000 a month. She shared a 3-bedroom home with 4 to 5 people, and her monthly rent fluctuated from $1,000 to $2,000, depending on the No. 19AP-675 4 number of people living in the house. She incurred additional expenses for transportation, food, and other necessities. {¶ 11} Yerra testified she wanted to stay married to Sangeri. She stated she would be the first person in her community to be divorced and was reluctant to return to India, due to the stigma attached to a divorced woman. {¶ 12} After the trial concluded, the parties submitted their respective proposed findings of facts and conclusions of law. {¶ 13} On September 4, 2019, the trial court issued a judgment entry for decree of divorce, findings of fact and conclusions of law. The trial court found that the duration of the marriage was from April 17, 2016 to June 26, 2019. The trial court granted the divorce to Sangeri on the grounds that the parties had lived separate and apart for a period in excess of one year without cohabitation. Additionally, the trial court allocated martial and non- marital assets and made a distributive award to Yerra. Based on the parties' testimony and evidence adduced at trial, the trial court set forth in the divorce decree the following conclusions of law, directly addressing the parties' respective credibility: This Court is vested with broad discretion when fashioning a division of both marital property and marital debt. The award need not be equal but it must be equitable. The Court considers that spousal support is justifiable in this case, but based on the positions of the parties, a strict division of assets as revealed in testimony and by evidence presented at trial, as well as an award to [Yerra] for Attorney Fees, may be most appropriate in this matter. Awarding [Yerra] all marital equity in the Claver Condo is an appropriate substitute for spousal support in this matter. [Sangeri] attempts to make arguments for reducing the marital equity in the home based on the argument that "he alone contributed". The Court rejects this argument as an inappropriate attempt to reintroduce a de facto termination theory of the case, which with this Court has already disposed. [Yerra] testified she believed she was fraudulently induced to marry [Sangeri] in a scheme for an elder brother to marry first in order that [Sangeri's] younger brother be able to make a match considered advantageous to his family. The Court heard persuasive testimony on this topic. But the Court does not need to make a determination on these emotionally-laden matters in order to craft an equitable award based on the needs and relative dependencies of the parties. No. 19AP-675 5 [Yerra] credibly demonstrated, through testimony and evidence, that she is vocationally vulnerable due to her visa limitations in the United States. Equally persuasive was her testimony that she is reluctant to return to her home country where she would face extreme stigma in her own culture of being a divorced woman, and [] lacks significant personal resources. The Court found [Sangeri] to lack credibility on the issues of transfers he made before filing for divorce and regarding his role in Telligen Tech. [Yerra] and her Counsel were required to expend time and resources to substantiate funds due to [Sangeri's] lack of transparency and non-disclosures. If full transparency existed, it may be that [Sangeri's] assets are far greater than what has been established in this Court. (Decree of Divorce at 5-6.) {¶ 14} The trial court, based on its findings of fact and conclusions of law, issued the following orders in the division of property section of the divorce decree: 1. Yerra was awarded all the marital equity of $18,210.43 in the rental property located at 4120 Claver Drive, Columbus, Ohio ("Claver Condo"). The trial made this award in lieu of spousal support. 2. Sangeri was ordered to pay Yerra the following sums of money:  $19,563, the amount equal to one-half the funds Sangeri withdrew prior to filing for divorce;  $9,996, the amount equal to one-half the marital funds transferred to India;  $20,000, the amount equal to one-half the monies Sangeri was then known to have received from Telligen Tech during the marriage;  $16,491, the amount equal to the funds Sangeri transferred to his friends and family prior to filing for divorce. 3. Each party to maintain their bank accounts as titled in their own name. No. 19AP-675 6  Each party to retain any and all personal property in their respective possession and control, including jewelry, household goods, and furniture.  Sangeri to retain the 2007 Infiniti G35 and any other vehicles in his possession. (Decree of Divorce at 7-9.) {¶ 15} Additionally, the trial court found there was no marital debts. {¶ 16} The trial court awarded Yerra $10,000 in attorney fees and ordered Sangeri to pay the same. {¶ 17} Finally, the trial court issued orders regarding the parties' stipulations with respect to determining the marital value of Sangeri's 401(k) plan with L-Brands, a Morgan Stanley investment account, and an AST Equity Plan Solutions account. {¶ 18} In conclusion, the trial court stated it was "not required to make factual findings regarding each piece of evidence, and the omission of a fact from this decision does not suggest that the court did not consider that fact." (Decree of Divorce at 11.) {¶ 19} Sangeri now appeals. II. ASSIGNMENTS OF ERROR {¶ 20} Sangeri presents for our review 11 assignments of error: [1.] The trial Court erred and abused its discretion by granting 100% of the equity in the 4120 Claver Drive property to [Yerra]. [2.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $20,000 to [Yerra]. [3.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $19,563 to [Yerra]. [4.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $9,996 to [Yerra]. [5.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $16,491 to [Yerra] to the extent this was ordered twice. [6.] The trial court erred and abused its discretion by granting $10,000 in attorney fees to [Yerra]. No. 19AP-675 7 [7.] The trial court erred and abused its discretion by finding the jewelry given to the parties as part of their wedding ceremony was [Yerra's] separate property. [8.] The trial court erred and abused its discretion by finding there was no marital debt. [9.] The trial court erred and abused its discretion by failing to find the parties['] bank accounts to be marital assets and failing to equitably divide such. [10.] The trial court erred and abused its discretion by ordering [Sangeri] to pay to [Yerra] one-half the marital value of the L- Brands Stock. [11.] The trial court erred and abused its discretion by ordering a division of assets and debts that was not equitable. III. DISCUSSION A. Determination and Division of Marital Property {¶ 21} Ten of Sangeri's 11 assignments of error—all except his sixth assignment of error regarding attorney fees—relate to the trial court's determinations regarding the parties' marital and non-marital property and how to divide any marital property equitably. We first address those 10 assignments of error. 1. Law and Standards of Review {¶ 22} In divorce proceedings, the trial court is required to determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Marital property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property is defined by statute, in relevant part, as "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." R.C. 3105.171(A)(6)(a)(vii). The statute further provides that the commingling of separate property with any other type of property does not destroy its identity, unless the separate property is not traceable. R.C. 3105.171(A)(6)(b). When the parties contest whether an asset is marital or separate property, it is presumed to be marital property unless proven otherwise. Wolf-Sabatino v. Sabatino, 10th Dist. No. 10AP-1161, 2011-Ohio-6819 , ¶ 11. The party requesting that an asset be classified as separate property bears the burden of tracing it to his or her separate property. Id. No. 19AP-675 8 {¶ 23} We review a trial court's determination of property as marital or separate under a manifest weight standard and will affirm a trial court's determination if it is supported by some competent, credible evidence. Roush v. Roush, 10th Dist. No. 15AP- 1071, 2017-Ohio-840 , ¶ 18, citing Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267 , ¶ 36. {¶ 24} After determining what constitutes marital property and what constitutes separate property, the court is required to divide the marital and separate property equitably. R.C. 3105.171(B). With respect to marital property, R.C. 3105.171(C)(1) provides that marital property shall be divided equally, unless an equal division would be inequitable, in which case the property shall be divided in the manner the court determines equitable. The trial court must value the marital property to determine an appropriate division. See Raymond v. Raymond, 10th Dist. No. 11AP-363, 2011-Ohio-6173 , ¶ 22 ("To comply with its duty [under R.C. 3105.171(C)(1)], the trial court must value and divide all marital property in a divorce, and in most cases, the failure to do so amounts to an abuse of discretion. Although a trial court possesses broad discretion to determine the value of marital property, it may not omit valuation altogether.") (citations omitted). {¶ 25} We review a trial court's determination of the value of marital property for abuse of discretion. Beagle v. Beagle, 10th Dist. No. 09AP-353, 2009-Ohio-6570 , ¶ 11 ("A trial court has broad discretion to determine the value of marital property, and its determination will not be disturbed on appeal absent an abuse of that discretion."); Grody v. Grody, 10th Dist. No. 07AP-690, 2008-Ohio-4682 , ¶ 20 ("A trial court has broad discretion in developing a measure of value for property in a divorce case."). 2. First Assignment of Error {¶ 26} In his first assignment of error, Sangeri asserts the trial court erred and abused its discretion by granting 100 percent of the equity in the Claver Condo to Yerra. The trial court found Sangeri's assertion essentially renewed his motion for a de facto termination date of the marriage, a motion the trial court had already denied. We agree. {¶ 27} It is undisputed that Sangeri purchased the Claver Condo in January 2017, while the parties were married. The trial court determined that the Claver Condo is marital property. No. 19AP-675 9 {¶ 28} In the divorce decree, the trial court explicitly found it was more appropriate and equitable to award Yerra the full amount of the condo's equity in lieu of spousal support. The trial court found that "[c]redible testimony and evidence was shown to indicate [Sangeri] wanted [Yerra] to be dependent on him, he maintained financial control in such a manner that she was dependent on him, and the marriage itself was arranged in a way to increase her dependence." (Decree of Divorce at 4.) The trial court explained that its reasoning in making this award "is based on observation and weighing of the credibility of each party, the lack of transparency by [Sangeri] regarding financial transactions, and the clear disparity of income and financial vulnerability which puts [Yerra] in a weaker position." (Decree of Divorce at 7.) Additionally, as noted previously, the decree contains the trial court's specific rejection of Sangeri's argument that he alone contributed to the Claver Condo, finding his argument "an inappropriate attempt to reintroduce a de facto termination theory of the case, which with this Court has already disposed." (Decree of Divorce at 6.) {¶ 29} "The first step in making an equitable distribution of marital property is to determine the duration of the marriage." Heyman v. Heyman, 10th Dist. No. 05AP-475, 2006-Ohio-1345 , ¶ 31. R.C. 3105.171(A)(2)(a) creates a presumption that the term of a marriage for purposes of property valuation is the time from the date of the marriage through the date of the final hearing in an action for divorce. Meeks v. Meeks, 10th Dist. No. 05AP-315, 2006-Ohio-642 , ¶ 50. If the court determines use of that date would be inequitable, however, it may select a termination date that it considers equitable. R.C. 3105.171(A)(2)(b). "[A] trial court may use a de facto termination of marriage date when the evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances." Meeks at ¶ 50. The court has discretion whether to use the final hearing date or a de facto termination date and this decision is subject to review for abuse of discretion. Id. {¶ 30} In the matter before us, the trial court's explanation as to why it rejected the de facto termination date of the marriage requested by Sangeri is supported by competent, credible evidence. The trial court's decision clearly sets forth a rational evidentiary basis for awarding Yerra the full marital equity in the Claver Condo. Moreover, the trial judge was best situated to access the credibility of the witnesses and the evidence. Therefore, we No. 19AP-675 10 find the trial court did not err or abuse its discretion in making this award, and this Court will not disturb the award. {¶ 31} Accordingly, the first assignment of error is overruled. 3. Depleted Marital Funds – Second, Third, Fourth, and Fifth Assignments of Error {¶ 32} In his second, third, fourth, and fifth assignments of error, Sangeri asserts the trial Court erred and abused its discretion by ordering him to pay Yerra $20,000, representing one-half of the money Sangeri was known to have received from Telligen Tech during the marriage; $19,563, representing one-half the amount of money Sangeri withdrew before he filed for divorce; $9,996, representing one-half of the marital funds Sangeri transferred to India; and $16,491, representing one-half of the funds Sangeri transferred to his family and friends before he filed for divorce, an amount that Sangeri argues he is being ordered to pay twice. {¶ 33} The decree contains the trial court's rationale with respect to these four orders. The trial court determined that, based on Sangeri's affidavit of property and credible evidence adduced at trial, the record demonstrated that Sangeri had depleted marital assets prior to filing for divorce. The decree contains the trial court's findings of fact based on testimony, including the following: d. Credible testimony, including admissions by [Sangeri], during the trial suggest that [Sangeri] is a silent partner in * * * Telligen Tech * * *. The Court is convinced that sufficient testimony and physical evidence was shown at trial to support a finding that [Sangeri] has unreported ownership stake or some form of business relationship in or with this company that increases his assets and access to capital. The parties do not appear to be in a position to undertake a more thorough forensic analysis. Consequently, the Court must simply include this evidentiary issue in its weighing of equities. e. [Sangeri] received a check on June 6, 2017 for $40,000 from Telligen Tech. [Sangeri] claimed the check was a repayment for a loan made to the company. Credible testimony and physical evidence shows [sic] that this amount represents potential income to [Sangeri]. Whether it is income or a loan, there are no credible business documentation to support [Sangeri's] position in the matter. It is, at the very least, an informal transfer of marital property. Therefore, the Court will treat it as a marital asset. No. 19AP-675 11 *** g. [Sangeri] testified that he sought legal advice to terminate his marriage around September 2017. He filed for divorce November 20, 2017. h. [Sangeri] holds the following accounts. According to credible testimony and evidence, various sums totaling $39,125.93 were withdrawn in close proximity to [Sangeri] filing for divorce: i. Digital Federal Credit Union (DCU) # *849 ii. Chase Bank # *839 [Sangeri] was unwilling or unable to state a credible or appropriate business or personal reason for these transfers. i. [Sangeri] transferred funds totaling $19,992.29 to India from 2/1/17 to 5/28/19. [Sangeri] contends these funds were to his parents for support. [Yerra] testified the transfers were related to [Sangeri's] interest in Telligen Tech and its India operations. The parties were subject to a Standard Mutual Temporary Restraining Order November 21, [2017]2. The Court finds that regardless of the purpose of the transfers, they were not exempted by the TRO, as they are not "day to day spending" in the sense of the agreement[.] j. In his Affidavit of Property, [Sangeri] acknowledged transfers to friends and family totaling $32,982. These transfers included $20,000 to Telligen Tech principal Ashwin Puppala. [Sangeri] was unwilling or unable to state a credible or appropriate business or personal reason for these transfers. He claimed he wanted to "help his friends." The Court does not find this to be an appropriate answer and the large transfer in particular raises questions about whether [Sangeri] and the recipient of this large gift followed applicable federal regulations for cash transfers. In any event, the Court considers these marital assets depleted without the consent or knowledge of [Yerra], and [Sangeri] is required to make her whole. (Decree of Divorce at 3-5.) {¶ 34} In the divorce decree, the trial court summarized its findings that Sangeri had depleted these martial assets, stating: 2A typographical error in the September 4, 2019 divorce decree states the TRO issued November 21, 2019. The record in this matter clearly reflects that the TRO issued November 21, 2017, the day after Sangeri filed his divorce complaint. No. 19AP-675 12 [Sangeri] seeks to ignore this depletion of these marital assets and additionally credit him $4,613.50 for a payment made to [Yerra] that he had already been required to pay, had not paid, and made the payment in Court. The Court will not countenance either argument. It is clear from the evidence and testimony provided that [Sangeri] not only depleted marital assets prior to divorce, he transferred funds to India outside the mutual standard Temporary Restraining Order; and displayed a thorough lack of transparency regarding his assets and interests. [Sangeri's] behavior amounts to either willful or reckless financial misconduct. The Court addresses this imbalance by requiring [Sangeri] to make payment of these funds to [Yerra] as her half of marital assets that were either willfully or recklessly depleted. (Decree of Divorce at 8.) {¶ 35} Both parties provided conflicting testimony as to the source and dispersal of these funds. The trial court found Yerra's testimony credible and Sangeri's testimony not credible. Moreover, the trial court found Sangeri's actions violated the mutual standard temporary restraining order the trial court had issued. {¶ 36} "It is the place of the trial court, not the reviewing court, to assess the credibility of the witnesses." Heyman at ¶ 18. Under the circumstances in this case, we conclude there was competent, credible evidence to support the trial court's conclusions and, therefore, the findings that Sangeri willfully or recklessly depleted these funds. Consequently, there is no abuse of discretion. {¶ 37} The second, third, fourth, and fifth assignments of error are overruled. 4. Jewelry – Seventh Assignment of Error {¶ 38} Sangeri's seventh assignment of error asserts the trial court erred and abused its discretion by finding the jewelry given to the parties as part of their wedding ceremony was Yerra's separate property. {¶ 39} In divorce proceedings, the trial court is required to determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Marital property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property is defined by statute, in relevant part, as "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." R.C. 3105.171(A)(6)(a)(vii). The statute further provides that the commingling of separate No. 19AP-675 13 property with any other type of property does not destroy its identity, unless the separate property is not traceable. R.C. 3105.171(A)(6)(b). When the parties contest whether an asset is marital or separate property, it is presumed to be marital property unless proven otherwise. Wolf-Sabatino at ¶ 11. The party requesting that an asset be classified as separate property bears the burden of tracing it to his or her separate property. Id. We review a trial court's determination of property as marital or separate under a manifest weight standard and will affirm a trial court's determination if it is supported by some competent, credible evidence. Roush at ¶ 18, citing Banchefsky at ¶ 36. {¶ 40} The parties gave conflicting testimony regarding who had provided the jewelry to whom and when. Sangeri testified that he and Yerra received gold jewelry from her parents and his parents. He stated he had received a bracelet, a ring, and a necklace chain, while she received a couple of necklaces. However, Sangeri was unable to produce any admissible documentary evidence to support his testimony that his parents had purchased some of the jewelry and the jewelry provided by both sets of parents had been given to the parties jointly. {¶ 41} Yerra testified that no jewelry in her possession had been given to her by Sangeri's parents. She acknowledged that she had had some jewelry while she was staying with Sangeri in Columbus, but she had taken that jewelry with her when the parties traveled to India for the wedding of Sangeri's younger brother and left it with her parents when she returned to the United States. Yerra testified on cross-examination that the jewelry that was given to her at her wedding was purchased by her parents, and that was the jewelry she left with her parents. On redirect, she testified that neither Sangeri nor his parents had given her any jewelry at the time of the parties' wedding or thereafter. She stated that the jewelry Sangeri was describing had been given to her by her parents prior to her marriage. {¶ 42} In the divorce decree, the trial court found that the jewelry belonged solely to Yerra and thus was not marital property. The trial court explained its finding as follows: [Sangeri] claims he gave certain jewelry, valued according to his estimate to be $20,000, to [Yerra] which he now deems marital property. He provided grainy black and white photos and "receipts" as evidence. The Court is unable to make any determination regarding the composition or value of the jewelry in these photos. The "receipts" shown appear to be a calculation of numbers written on a jewelers' letterhead. [Sangeri] fails to establish any relationship between the No. 19AP-675 14 "receipts" and the jewelry in the photos, and has also not established that he purchased the jewelry at all, or that he gave it to [Yerra]. Any jewelry in [Yerra's] possession, or any she placed with her family, is her separate property and shall remain her separate property. [Sangeri's] attempts to raise an issue of [Yerra] not including wedding jewelry on her Affidavit of Property, but, in the Court's view, the inclusion of wedding jewelry on Property Affidavits is not typical. (Decree of Divorce at 9.) {¶ 43} To the extent Sangeri challenges the credibility of Yerra's testimony, those issues were raised at trial and the trial court was able to consider them in evaluating and weighing the evidence. The trial court found that Yerra's testimony overcame the presumption that the jewelry was marital property. "It is the place of the trial court, not the reviewing court, to assess the credibility of the witnesses." Heyman at ¶ 18. Although nothing in the record appears to support the trial court's finding that "the inclusion of wedding jewelry on Property Affidavits is not typical," we find that to be harmless error. (Decree of Divorce at 9.) Under the circumstances in this case, we conclude there was competent, credible evidence to support the trial court's conclusion and, therefore, the finding that the jewelry was Yerra's separate property was not against the manifest weight of the evidence. {¶ 44} The seventh assignment of error is overruled. 5. Eighth Assignment of Error {¶ 45} In his eighth assignment of error, Sangeri asserts the trial court erred and abused its discretion by finding there was no marital debt. {¶ 46} In its findings of fact, the trial court found that "[Sangeri's] credit card liabilities include $2,164.07 (Chase Bank) and $14,946.99 (Bank of America). [Sangeri] confirmed that a portion was for payment of his attorney fees, and did not confirm the sources of the other liabilities." (Decree of Divorce at 5.) {¶ 47} In the divorce decree, the trial court stated it did not find any marital debt in this matter. {¶ 48} The property to be divided in a divorce proceeding includes not only the parties' assets but also any debts incurred by the parties. Marrero v. Marrero, 9th Dist. No. 02CA008057, 2002-Ohio-4862 . Marital debt has been defined as any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. No. 19AP-675 15 Ketchum v. Ketchum, 7th Dist. No. 2001 CO 60 , 2003-Ohio-2559 , citing Turner, Equitable Distribution of Property, Section 6.29, at 455 (2d Ed.1994, Supp.2002). {¶ 49} Sangeri's testimony indicated that his credit card debt immediately prior to his marriage of $12,981.00, and at the time of trial was $17,111.06, an increase of $4,130.06. Sangeri also testified he paid approximately $10,000.00 to his divorce attorneys using his Chase Bank and Bank of America credit cards. He was unable, however, to provide an accounting of what amount of the debt of either of these credit cards was for and whether it related to payments to his attorneys in the underlying matter. He conceded in his brief that any monies paid to his divorce counsel via credit card may be "grounds to consider some debt not marital." (Sangeri's Brief at 37.) {¶ 50} The parties stipulated that the allocation of credit card debt "shall be left to the determination of the Court." (Tr. at 71.) In the absence of any credible testimony or evidence as to what portion of Sangeri's credit card was for valid marital purposes, the trial court could not determine what, if any, of Sangeri's credit card debt was marital debt. Consequently, the trial court did not find it equitable under the circumstances to consider any portion of the parties' debt to be marital debt. The trial court found, therefore, no marital debt in this matter and ordered each party "to pay for and hold the other harmless on all personal debts and obligations." (Decree of Divorce at 9.) Given the record before us, we find the trial court did not abuse its discretion in reaching this determination. {¶ 51} Accordingly, the eighth assignment of error is overruled. 6. Ninth Assignment of Error {¶ 52} In his ninth assignment of error, Sangeri asserts the trial court erred and abused its discretion by failing to find the parties' bank accounts to be marital assets and failing to equitably divide such. {¶ 53} R.C. 3105.171(F)(2) requires the trial court to consider the parties' assets and liabilities in the event the trial court makes an equitable distribution of the marital assets. The record before us demonstrates that the trial court considered this and other factors and set forth the basis for an equitable distribution in the divorce decree. As previously discussed, the trial court specifically addressed Sangeri's lack of transparency regarding financial matters as well as the evidence that Sangeri had depleted the marital assets prior to filing for divorce, violating the temporary restraining order in the process. Having No. 19AP-675 16 addressed those inequities, the trial court determined that, in other regards, it was equitable that each party maintain their bank accounts as titled in their own name. {¶ 54} Yerra submits that, by ordering each party to keep their own bank accounts, the trial court made an equal division of the total bank account balances. Given the circumstances of this case, we agree, and find the trial court did not abuse its discretion in this regard. {¶ 55} The ninth assignment of error is overruled. 7. Tenth Assignment of Error {¶ 56} In his tenth assignment of error, Sangeri asserts the trial court erred and abused its discretion by ordering Sangeri to pay to Yerra one-half the marital value of the L-Brands Stock. {¶ 57} The trial court addressed this issue under the stipulations section of the divorce decree. The parties had stipulated that 300.88457 of Sangeri's share in L-Brands, from his Employee Stock Purchase Plan, were marital property. The parties further stipulated that, as of the date of the trial, the stock price was $24.17 per share. Thus, these shares had a total value of $7,235.14, as stipulated by the parties. Divided equally, each party would receive $3,617.57. {¶ 58} The trial court's determination incorporated the parties' stipulations as to how many shares constituted marital property and what the value of those shares was as of a date certain designated by the parties. The parties also stipulated that "[t]he division of the marital portion and whether or not it is equitable for defendant to receive value for such shall be left to the determination of the court." (Tr. at 71.) The trial court stated in the decree that the ordered distribution was determined under principles of equity. Consequently, we find the trial court did not abuse its discretion with respect to the division of the L-Brands Stock shares. {¶ 59} The tenth assignment of error is overruled. 8. Eleventh Assignment of Error {¶ 60} In his eleventh assignment of error, Sangeri asserts the trial court erred and abused its discretion by ordering a division of assets and debts that was not equitable. {¶ 61} We disagree. For all the foregoing reasons, we find the trial court did not err or abuse its discretion in division of marital assets and debts. Accordingly, the eleventh assignment of error is overruled No. 19AP-675 17 B. Attorney's Fees – Sixth Assignment of Error {¶ 62} Sangeri's sixth assignment of error assets the trial court erred and abused its discretion by granting $10,000 in attorney fees to Yerra. We disagree. {¶ 63} In divorce proceedings, a trial court may award "all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable." R.C. 3105.73(A). A trial court " 'may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate' " to determine whether an award is equitable. Rodgers v. Rodgers, 8th Dist. No. 105095, 2017-Ohio-7886 , ¶ 60, quoting Gentile v. Gentile, 8th Dist. No. 97971, 2013-Ohio-1338 , ¶ 69. {¶ 64} We have held that an award of attorney fees under R.C. 3105.73 lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Wehrle v. Wehrle, 10th Dist. No. 12AP-386, 2013-Ohio-81 , ¶ 47, citing Huffer v. Huffer, 10th Dist. No. 09AP-574, 2010-Ohio-1223 , ¶ 19, citing Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110 , ¶ 36. {¶ 65} Yerra testified that she had been able to pay only $2,500 to her attorney as of the time of trial. In comparison, Sangeri had paid his attorneys $10,000. Yerra directs our attention to a holding of Rodgers at ¶ 70: "Where the amount of an attorney's time and work is evident to the trier of fact, an award of attorney fees, even in the absence of specific evidence to support the amount, is not an abuse of discretion." Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-782 , ¶ 17. Indeed, domestic relations courts often rely on their own knowledge and experience to determine the reasonableness of attorney fees. See e.g., Long v. Long, 10th Dist. Franklin No. 11AP-510, 2012-Ohio-6254 , ¶ 20 ("The trial court * * * is not required to hear [expert] testimony and may rely on its own knowledge and experience to determine the reasonableness of the amount claimed."); Lundy v. Lundy, 11th Dist. Trumbull No. 2012-T- 0100, 2013-Ohio-3571 , ¶ 55 (Trial court "may evaluate the work performed by an attorney in a domestic-relations action * * * [a]nd * * * may use its own knowledge and experience to determine the reasonableness [of] the amount claimed."); Groza-Vance v. Vance, 162 Ohio App.3d 510 , 2005-Ohio-3815 , 834 N.E.2d 15 , ¶ 44 (10th Dist.) (same); Gore v. Gore, 2d Dist. Greene No. 09-CA-64, 2010-Ohio-3906 , ¶ 39. No. 19AP-675 18 {¶ 66} The trial court explained its decision on the subject matter ordering Sangeri to pay Yerra for her attorney fees: Due to [Sangeri's] lack of transparency regarding transfers of funds around the time of his filing for divorce, large checks written to friends and family without an identified purpose, and receipt of funds from Telligen Tech, he required [Yerra] and her Counsel to use time and resources to address these issues. Whether the financial misconduct is deliberate on the part of [Sangeri] or merely his manner of doing business, it put [Yerra] in a detrimental position. Therefore, the Court awards [Yerra] $10,000 in attorney fees, and orders [Sangeri] to pay same. (Decree of Divorce at 10.) {¶ 67} We find the trial court's award of attorney fees and expenses was readily explained and within the trial court's discretion. {¶ 68} The sixth assignment of error is overruled. IV. CONCLUSION {¶ 69} For the foregoing reasons, having independently examined the record, reviewed the parties' briefs, and listened to the parties' oral arguments, we conclude the trial court did not err in its decision. Accordingly, we overrule all eleven of Sangeri's assignments of error and affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Judgment affirmed. SADLER, P.J., and NELSON, J., concur.

2020-12-03 18:16:22.846591+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5489.pdf

[Cite as Sangeri v. Yerra, 2020-Ohio-5489 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Ashok K. Sangeri, : Plaintiff-Appellant, : No. 19AP-675 v. : (C.P.C. No. 17DR-4265) Sahitya Yerra, : (REGULAR CALENDAR) Defendant-Appellee. : N U N C P R O T U N C1 D E C I S I O N Rendered on December 3, 2020 On brief: Wood Long Family Law, and Jessica M. Wood, for appellant. Argued: Jessica M. Wood. On brief: Sanjay K. Bhatt, for appellee. Argued: Sanjay K. Bhatt. APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations BRUNNER, J. {¶ 1} Plaintiff-appellant, Ashok K. Sangeri, appeals from the judgment entry and final divorce decree entered by the Franklin County Court of Common Pleas, Division of Domestic Relations on September 4, 2019. For the following reasons, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 2} Sangeri and defendant-appellee, Sahitya Yerra, entered into an arranged marriage on April 17, 2016. No children were born as issue of the marriage. The parties separated just over one year after the marriage. On November 20, 2017, Sangeri filed a complaint for divorce. On February 10, 2018, Yerra filed her answer; she did not file a 1 This decision replaces the previous decision filed on December 1, 2020 that was not in final format. No. 19AP-675 2 counterclaim. On January 15, 2019, Sangeri filed an amended complaint to include, as an additional ground for divorce, that the parties were living separate and apart without cohabitation for more than one year. Yerra did not contest that allegation. {¶ 3} During the pendency of the case, Yerra filed a motion for temporary orders. Upon review of the parties' respective affidavits and in consideration of the parties' incomes, assets, and liabilities, the magistrate ordered Sangeri to pay spousal support in the amount of $1,500 per month for 8 months, commencing February 1, 2018. On June 21, 2019, the trial court denied Sangeri's motion for a de facto termination date of the marriage. {¶ 4} A contested two-day trial was conducted on June 25 and 26, 2019, before a judge of the Division of Domestic Relations. It is undisputed that the parties were married in India on April 17, 2016, and that their parents had brokered the marriage. At the time of their engagement, Yerra lived in India, whereas Sangeri was living in Columbus, Franklin County, Ohio and working for L-Brands, where he had been employed for approximately 8 years at that time. Sangeri earned $125,103 in 2016 and $126,900 in 2017 at L-Brands. {¶ 5} It also is undisputed that Yerra, after becoming engaged to Sangeri, came to the United States on a student visa and began her studies at New Hampshire University. Yerra testified she wanted to transfer to Indiana Technical University in order to be closer to Sangeri, but he did not agree to the transfer. {¶ 6} The parties dispute the basis for their marriage. Yerra asserted throughout her testimony her belief that she was fraudulently induced to marry Sangeri. She testified that, not long after their wedding, Sangeri told her he only married her so that his younger brother could marry. Yerra testified Sangeri and she returned to India for the wedding of Sangeri's younger brother. Thereafter, Sangeri told her that, with his brother's marriage accomplished, the purpose of their own marriage was over, and he was going to file for divorce. {¶ 7} Sangeri disputed Yerra's account of these events. He testified that he entered the marriage at his parents' instigation. He also testified that his brother did not meet the woman he later married until after Sangeri's engagement to Yerra. Sangeri testified that it was his understanding at the time he became engaged to Yerra that Yerra planned to come to the United States on a dependent visa until she could secure a student visa and attend the New Hampshire University. Sangeri testified that, after the parties' wedding in India, No. 19AP-675 3 they returned to the United States separately, about two days apart. Sangeri returned to Columbus, and Yerra returned to New Hampshire. Sangeri testified that the parties' relationship after their wedding was good, and that they spoke regularly and met many times. He testified that he noticed a shift in Yerra's attitude toward him when they went to India for his brother's wedding. He described their subsequent communications as argumentative and the marriage as "rocky." (June 25, 2019 Tr. at 40.) Sangeri testified his relationship with Yerra continued to deteriorate to the point that he told her he thought their marriage was over, and he felt she agreed. Sangeri testified that he sought legal advice to terminate the marriage in September 2017. He filed for divorce November 20, 2017. {¶ 8} Yerra testified that, while she was attending school in New Hampshire, she wanted to come to Columbus to visit Sangeri, but that Sangeri dissuaded her, claiming financial distress and refusing to pay for Yerra's travel to Columbus. Sangeri denied refusing to have Yerra visit but acknowledged he had not wanted to purchase the more expensive airline tickets for last-minute trips because it was a financially stressful time for him. {¶ 9} Yerra disputes Sangeri's claim of financial stress, testifying that he received income as a silent partner in an information technology service company, Telligen Tech. Sangeri denied being a silent partner in Telligen Tech or receiving income from it. He testified the company belonged to friends he helped out occasionally, even lending them substantial amounts of money while he was married to Yerra. He acknowledged the company has office locations at Airport Drive in Columbus, Ohio and in Hyderabad, India. Yerra also pointed to money Sangeri transferred to India, asserting the money was to pay Telligen Tech employees in India. Sangeri denied Yerra's assertion, testifying that the money transfers of $9,996 and $16,491 he made during the marriage were to his family and friends in India. {¶ 10} Yerra testified that, following her graduation from university, she continued to be in the United States on a student visa, on Optional Practical Training ("OPT") status. The expiration date of her OPT status was August 2020, with no guarantee that it would be renewed. Yerra's employment required her to live in the New York/New Jersey area. She testified that her net income was $4,000 a month. She shared a 3-bedroom home with 4 to 5 people, and her monthly rent fluctuated from $1,000 to $2,000, depending on the No. 19AP-675 4 number of people living in the house. She incurred additional expenses for transportation, food, and other necessities. {¶ 11} Yerra testified she wanted to stay married to Sangeri. She stated she would be the first person in her community to be divorced and was reluctant to return to India, due to the stigma attached to a divorced woman. {¶ 12} After the trial concluded, the parties submitted their respective proposed findings of facts and conclusions of law. {¶ 13} On September 4, 2019, the trial court issued a judgment entry for decree of divorce, findings of fact and conclusions of law. The trial court found that the duration of the marriage was from April 17, 2016 to June 26, 2019. The trial court granted the divorce to Sangeri on the grounds that the parties had lived separate and apart for a period in excess of one year without cohabitation. Additionally, the trial court allocated martial and non- marital assets and made a distributive award to Yerra. Based on the parties' testimony and evidence adduced at trial, the trial court set forth in the divorce decree the following conclusions of law, directly addressing the parties' respective credibility: This Court is vested with broad discretion when fashioning a division of both marital property and marital debt. The award need not be equal but it must be equitable. The Court considers that spousal support is justifiable in this case, but based on the positions of the parties, a strict division of assets as revealed in testimony and by evidence presented at trial, as well as an award to [Yerra] for Attorney Fees, may be most appropriate in this matter. Awarding [Yerra] all marital equity in the Claver Condo is an appropriate substitute for spousal support in this matter. [Sangeri] attempts to make arguments for reducing the marital equity in the home based on the argument that "he alone contributed". The Court rejects this argument as an inappropriate attempt to reintroduce a de facto termination theory of the case, which with this Court has already disposed. [Yerra] testified she believed she was fraudulently induced to marry [Sangeri] in a scheme for an elder brother to marry first in order that [Sangeri's] younger brother be able to make a match considered advantageous to his family. The Court heard persuasive testimony on this topic. But the Court does not need to make a determination on these emotionally-laden matters in order to craft an equitable award based on the needs and relative dependencies of the parties. No. 19AP-675 5 [Yerra] credibly demonstrated, through testimony and evidence, that she is vocationally vulnerable due to her visa limitations in the United States. Equally persuasive was her testimony that she is reluctant to return to her home country where she would face extreme stigma in her own culture of being a divorced woman, and [] lacks significant personal resources. The Court found [Sangeri] to lack credibility on the issues of transfers he made before filing for divorce and regarding his role in Telligen Tech. [Yerra] and her Counsel were required to expend time and resources to substantiate funds due to [Sangeri's] lack of transparency and non-disclosures. If full transparency existed, it may be that [Sangeri's] assets are far greater than what has been established in this Court. (Decree of Divorce at 5-6.) {¶ 14} The trial court, based on its findings of fact and conclusions of law, issued the following orders in the division of property section of the divorce decree: 1. Yerra was awarded all the marital equity of $18,210.43 in the rental property located at 4120 Claver Drive, Columbus, Ohio ("Claver Condo"). The trial made this award in lieu of spousal support. 2. Sangeri was ordered to pay Yerra the following sums of money:  $19,563, the amount equal to one-half the funds Sangeri withdrew prior to filing for divorce;  $9,996, the amount equal to one-half the marital funds transferred to India;  $20,000, the amount equal to one-half the monies Sangeri was then known to have received from Telligen Tech during the marriage;  $16,491, the amount equal to the funds Sangeri transferred to his friends and family prior to filing for divorce. 3. Each party to maintain their bank accounts as titled in their own name. No. 19AP-675 6  Each party to retain any and all personal property in their respective possession and control, including jewelry, household goods, and furniture.  Sangeri to retain the 2007 Infiniti G35 and any other vehicles in his possession. (Decree of Divorce at 7-9.) {¶ 15} Additionally, the trial court found there was no marital debts. {¶ 16} The trial court awarded Yerra $10,000 in attorney fees and ordered Sangeri to pay the same. {¶ 17} Finally, the trial court issued orders regarding the parties' stipulations with respect to determining the marital value of Sangeri's 401(k) plan with L-Brands, a Morgan Stanley investment account, and an AST Equity Plan Solutions account. {¶ 18} In conclusion, the trial court stated it was "not required to make factual findings regarding each piece of evidence, and the omission of a fact from this decision does not suggest that the court did not consider that fact." (Decree of Divorce at 11.) {¶ 19} Sangeri now appeals. II. ASSIGNMENTS OF ERROR {¶ 20} Sangeri presents for our review 11 assignments of error: [1.] The trial Court erred and abused its discretion by granting 100% of the equity in the 4120 Claver Drive property to [Yerra]. [2.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $20,000 to [Yerra]. [3.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $19,563 to [Yerra]. [4.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $9,996 to [Yerra]. [5.] The trial court erred and abused its discretion by ordering [Sangeri] to pay $16,491 to [Yerra] to the extent this was ordered twice. [6.] The trial court erred and abused its discretion by granting $10,000 in attorney fees to [Yerra]. No. 19AP-675 7 [7.] The trial court erred and abused its discretion by finding the jewelry given to the parties as part of their wedding ceremony was [Yerra's] separate property. [8.] The trial court erred and abused its discretion by finding there was no marital debt. [9.] The trial court erred and abused its discretion by failing to find the parties['] bank accounts to be marital assets and failing to equitably divide such. [10.] The trial court erred and abused its discretion by ordering [Sangeri] to pay to [Yerra] one-half the marital value of the L- Brands Stock. [11.] The trial court erred and abused its discretion by ordering a division of assets and debts that was not equitable. III. DISCUSSION A. Determination and Division of Marital Property {¶ 21} Ten of Sangeri's 11 assignments of error—all except his sixth assignment of error regarding attorney fees—relate to the trial court's determinations regarding the parties' marital and non-marital property and how to divide any marital property equitably. We first address those 10 assignments of error. 1. Law and Standards of Review {¶ 22} In divorce proceedings, the trial court is required to determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Marital property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property is defined by statute, in relevant part, as "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." R.C. 3105.171(A)(6)(a)(vii). The statute further provides that the commingling of separate property with any other type of property does not destroy its identity, unless the separate property is not traceable. R.C. 3105.171(A)(6)(b). When the parties contest whether an asset is marital or separate property, it is presumed to be marital property unless proven otherwise. Wolf-Sabatino v. Sabatino, 10th Dist. No. 10AP-1161, 2011-Ohio-6819 , ¶ 11. The party requesting that an asset be classified as separate property bears the burden of tracing it to his or her separate property. Id. No. 19AP-675 8 {¶ 23} We review a trial court's determination of property as marital or separate under a manifest weight standard and will affirm a trial court's determination if it is supported by some competent, credible evidence. Roush v. Roush, 10th Dist. No. 15AP- 1071, 2017-Ohio-840 , ¶ 18, citing Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267 , ¶ 36. {¶ 24} After determining what constitutes marital property and what constitutes separate property, the court is required to divide the marital and separate property equitably. R.C. 3105.171(B). With respect to marital property, R.C. 3105.171(C)(1) provides that marital property shall be divided equally, unless an equal division would be inequitable, in which case the property shall be divided in the manner the court determines equitable. The trial court must value the marital property to determine an appropriate division. See Raymond v. Raymond, 10th Dist. No. 11AP-363, 2011-Ohio-6173 , ¶ 22 ("To comply with its duty [under R.C. 3105.171(C)(1)], the trial court must value and divide all marital property in a divorce, and in most cases, the failure to do so amounts to an abuse of discretion. Although a trial court possesses broad discretion to determine the value of marital property, it may not omit valuation altogether.") (citations omitted). {¶ 25} We review a trial court's determination of the value of marital property for abuse of discretion. Beagle v. Beagle, 10th Dist. No. 09AP-353, 2009-Ohio-6570 , ¶ 11 ("A trial court has broad discretion to determine the value of marital property, and its determination will not be disturbed on appeal absent an abuse of that discretion."); Grody v. Grody, 10th Dist. No. 07AP-690, 2008-Ohio-4682 , ¶ 20 ("A trial court has broad discretion in developing a measure of value for property in a divorce case."). 2. First Assignment of Error {¶ 26} In his first assignment of error, Sangeri asserts the trial court erred and abused its discretion by granting 100 percent of the equity in the Claver Condo to Yerra. The trial court found Sangeri's assertion essentially renewed his motion for a de facto termination date of the marriage, a motion the trial court had already denied. We agree. {¶ 27} It is undisputed that Sangeri purchased the Claver Condo in January 2017, while the parties were married. The trial court determined that the Claver Condo is marital property. No. 19AP-675 9 {¶ 28} In the divorce decree, the trial court explicitly found it was more appropriate and equitable to award Yerra the full amount of the condo's equity in lieu of spousal support. The trial court found that "[c]redible testimony and evidence was shown to indicate [Sangeri] wanted [Yerra] to be dependent on him, he maintained financial control in such a manner that she was dependent on him, and the marriage itself was arranged in a way to increase her dependence." (Decree of Divorce at 4.) The trial court explained that its reasoning in making this award "is based on observation and weighing of the credibility of each party, the lack of transparency by [Sangeri] regarding financial transactions, and the clear disparity of income and financial vulnerability which puts [Yerra] in a weaker position." (Decree of Divorce at 7.) Additionally, as noted previously, the decree contains the trial court's specific rejection of Sangeri's argument that he alone contributed to the Claver Condo, finding his argument "an inappropriate attempt to reintroduce a de facto termination theory of the case, which with this Court has already disposed." (Decree of Divorce at 6.) {¶ 29} "The first step in making an equitable distribution of marital property is to determine the duration of the marriage." Heyman v. Heyman, 10th Dist. No. 05AP-475, 2006-Ohio-1345 , ¶ 31. R.C. 3105.171(A)(2)(a) creates a presumption that the term of a marriage for purposes of property valuation is the time from the date of the marriage through the date of the final hearing in an action for divorce. Meeks v. Meeks, 10th Dist. No. 05AP-315, 2006-Ohio-642 , ¶ 50. If the court determines use of that date would be inequitable, however, it may select a termination date that it considers equitable. R.C. 3105.171(A)(2)(b). "[A] trial court may use a de facto termination of marriage date when the evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances." Meeks at ¶ 50. The court has discretion whether to use the final hearing date or a de facto termination date and this decision is subject to review for abuse of discretion. Id. {¶ 30} In the matter before us, the trial court's explanation as to why it rejected the de facto termination date of the marriage requested by Sangeri is supported by competent, credible evidence. The trial court's decision clearly sets forth a rational evidentiary basis for awarding Yerra the full marital equity in the Claver Condo. Moreover, the trial judge was best situated to access the credibility of the witnesses and the evidence. Therefore, we No. 19AP-675 10 find the trial court did not err or abuse its discretion in making this award, and this Court will not disturb the award. {¶ 31} Accordingly, the first assignment of error is overruled. 3. Depleted Marital Funds – Second, Third, Fourth, and Fifth Assignments of Error {¶ 32} In his second, third, fourth, and fifth assignments of error, Sangeri asserts the trial Court erred and abused its discretion by ordering him to pay Yerra $20,000, representing one-half of the money Sangeri was known to have received from Telligen Tech during the marriage; $19,563, representing one-half the amount of money Sangeri withdrew before he filed for divorce; $9,996, representing one-half of the marital funds Sangeri transferred to India; and $16,491, representing one-half of the funds Sangeri transferred to his family and friends before he filed for divorce, an amount that Sangeri argues he is being ordered to pay twice. {¶ 33} The decree contains the trial court's rationale with respect to these four orders. The trial court determined that, based on Sangeri's affidavit of property and credible evidence adduced at trial, the record demonstrated that Sangeri had depleted marital assets prior to filing for divorce. The decree contains the trial court's findings of fact based on testimony, including the following: d. Credible testimony, including admissions by [Sangeri], during the trial suggest that [Sangeri] is a silent partner in * * * Telligen Tech * * *. The Court is convinced that sufficient testimony and physical evidence was shown at trial to support a finding that [Sangeri] has unreported ownership stake or some form of business relationship in or with this company that increases his assets and access to capital. The parties do not appear to be in a position to undertake a more thorough forensic analysis. Consequently, the Court must simply include this evidentiary issue in its weighing of equities. e. [Sangeri] received a check on June 6, 2017 for $40,000 from Telligen Tech. [Sangeri] claimed the check was a repayment for a loan made to the company. Credible testimony and physical evidence shows [sic] that this amount represents potential income to [Sangeri]. Whether it is income or a loan, there are no credible business documentation to support [Sangeri's] position in the matter. It is, at the very least, an informal transfer of marital property. Therefore, the Court will treat it as a marital asset. No. 19AP-675 11 *** g. [Sangeri] testified that he sought legal advice to terminate his marriage around September 2017. He filed for divorce November 20, 2017. h. [Sangeri] holds the following accounts. According to credible testimony and evidence, various sums totaling $39,125.93 were withdrawn in close proximity to [Sangeri] filing for divorce: i. Digital Federal Credit Union (DCU) # *849 ii. Chase Bank # *839 [Sangeri] was unwilling or unable to state a credible or appropriate business or personal reason for these transfers. i. [Sangeri] transferred funds totaling $19,992.29 to India from 2/1/17 to 5/28/19. [Sangeri] contends these funds were to his parents for support. [Yerra] testified the transfers were related to [Sangeri's] interest in Telligen Tech and its India operations. The parties were subject to a Standard Mutual Temporary Restraining Order November 21, [2017]2. The Court finds that regardless of the purpose of the transfers, they were not exempted by the TRO, as they are not "day to day spending" in the sense of the agreement[.] j. In his Affidavit of Property, [Sangeri] acknowledged transfers to friends and family totaling $32,982. These transfers included $20,000 to Telligen Tech principal Ashwin Puppala. [Sangeri] was unwilling or unable to state a credible or appropriate business or personal reason for these transfers. He claimed he wanted to "help his friends." The Court does not find this to be an appropriate answer and the large transfer in particular raises questions about whether [Sangeri] and the recipient of this large gift followed applicable federal regulations for cash transfers. In any event, the Court considers these marital assets depleted without the consent or knowledge of [Yerra], and [Sangeri] is required to make her whole. (Decree of Divorce at 3-5.) {¶ 34} In the divorce decree, the trial court summarized its findings that Sangeri had depleted these martial assets, stating: 2A typographical error in the September 4, 2019 divorce decree states the TRO issued November 21, 2019. The record in this matter clearly reflects that the TRO issued November 21, 2017, the day after Sangeri filed his divorce complaint. No. 19AP-675 12 [Sangeri] seeks to ignore this depletion of these marital assets and additionally credit him $4,613.50 for a payment made to [Yerra] that he had already been required to pay, had not paid, and made the payment in Court. The Court will not countenance either argument. It is clear from the evidence and testimony provided that [Sangeri] not only depleted marital assets prior to divorce, he transferred funds to India outside the mutual standard Temporary Restraining Order; and displayed a thorough lack of transparency regarding his assets and interests. [Sangeri's] behavior amounts to either willful or reckless financial misconduct. The Court addresses this imbalance by requiring [Sangeri] to make payment of these funds to [Yerra] as her half of marital assets that were either willfully or recklessly depleted. (Decree of Divorce at 8.) {¶ 35} Both parties provided conflicting testimony as to the source and dispersal of these funds. The trial court found Yerra's testimony credible and Sangeri's testimony not credible. Moreover, the trial court found Sangeri's actions violated the mutual standard temporary restraining order the trial court had issued. {¶ 36} "It is the place of the trial court, not the reviewing court, to assess the credibility of the witnesses." Heyman at ¶ 18. Under the circumstances in this case, we conclude there was competent, credible evidence to support the trial court's conclusions and, therefore, the findings that Sangeri willfully or recklessly depleted these funds. Consequently, there is no abuse of discretion. {¶ 37} The second, third, fourth, and fifth assignments of error are overruled. 4. Jewelry – Seventh Assignment of Error {¶ 38} Sangeri's seventh assignment of error asserts the trial court erred and abused its discretion by finding the jewelry given to the parties as part of their wedding ceremony was Yerra's separate property. {¶ 39} In divorce proceedings, the trial court is required to determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Marital property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property is defined by statute, in relevant part, as "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." R.C. 3105.171(A)(6)(a)(vii). The statute further provides that the commingling of separate No. 19AP-675 13 property with any other type of property does not destroy its identity, unless the separate property is not traceable. R.C. 3105.171(A)(6)(b). When the parties contest whether an asset is marital or separate property, it is presumed to be marital property unless proven otherwise. Wolf-Sabatino at ¶ 11. The party requesting that an asset be classified as separate property bears the burden of tracing it to his or her separate property. Id. We review a trial court's determination of property as marital or separate under a manifest weight standard and will affirm a trial court's determination if it is supported by some competent, credible evidence. Roush at ¶ 18, citing Banchefsky at ¶ 36. {¶ 40} The parties gave conflicting testimony regarding who had provided the jewelry to whom and when. Sangeri testified that he and Yerra received gold jewelry from her parents and his parents. He stated he had received a bracelet, a ring, and a necklace chain, while she received a couple of necklaces. However, Sangeri was unable to produce any admissible documentary evidence to support his testimony that his parents had purchased some of the jewelry and the jewelry provided by both sets of parents had been given to the parties jointly. {¶ 41} Yerra testified that no jewelry in her possession had been given to her by Sangeri's parents. She acknowledged that she had had some jewelry while she was staying with Sangeri in Columbus, but she had taken that jewelry with her when the parties traveled to India for the wedding of Sangeri's younger brother and left it with her parents when she returned to the United States. Yerra testified on cross-examination that the jewelry that was given to her at her wedding was purchased by her parents, and that was the jewelry she left with her parents. On redirect, she testified that neither Sangeri nor his parents had given her any jewelry at the time of the parties' wedding or thereafter. She stated that the jewelry Sangeri was describing had been given to her by her parents prior to her marriage. {¶ 42} In the divorce decree, the trial court found that the jewelry belonged solely to Yerra and thus was not marital property. The trial court explained its finding as follows: [Sangeri] claims he gave certain jewelry, valued according to his estimate to be $20,000, to [Yerra] which he now deems marital property. He provided grainy black and white photos and "receipts" as evidence. The Court is unable to make any determination regarding the composition or value of the jewelry in these photos. The "receipts" shown appear to be a calculation of numbers written on a jewelers' letterhead. [Sangeri] fails to establish any relationship between the No. 19AP-675 14 "receipts" and the jewelry in the photos, and has also not established that he purchased the jewelry at all, or that he gave it to [Yerra]. Any jewelry in [Yerra's] possession, or any she placed with her family, is her separate property and shall remain her separate property. [Sangeri's] attempts to raise an issue of [Yerra] not including wedding jewelry on her Affidavit of Property, but, in the Court's view, the inclusion of wedding jewelry on Property Affidavits is not typical. (Decree of Divorce at 9.) {¶ 43} To the extent Sangeri challenges the credibility of Yerra's testimony, those issues were raised at trial and the trial court was able to consider them in evaluating and weighing the evidence. The trial court found that Yerra's testimony overcame the presumption that the jewelry was marital property. "It is the place of the trial court, not the reviewing court, to assess the credibility of the witnesses." Heyman at ¶ 18. Although nothing in the record appears to support the trial court's finding that "the inclusion of wedding jewelry on Property Affidavits is not typical," we find that to be harmless error. (Decree of Divorce at 9.) Under the circumstances in this case, we conclude there was competent, credible evidence to support the trial court's conclusion and, therefore, the finding that the jewelry was Yerra's separate property was not against the manifest weight of the evidence. {¶ 44} The seventh assignment of error is overruled. 5. Eighth Assignment of Error {¶ 45} In his eighth assignment of error, Sangeri asserts the trial court erred and abused its discretion by finding there was no marital debt. {¶ 46} In its findings of fact, the trial court found that "[Sangeri's] credit card liabilities include $2,164.07 (Chase Bank) and $14,946.99 (Bank of America). [Sangeri] confirmed that a portion was for payment of his attorney fees, and did not confirm the sources of the other liabilities." (Decree of Divorce at 5.) {¶ 47} In the divorce decree, the trial court stated it did not find any marital debt in this matter. {¶ 48} The property to be divided in a divorce proceeding includes not only the parties' assets but also any debts incurred by the parties. Marrero v. Marrero, 9th Dist. No. 02CA008057, 2002-Ohio-4862 . Marital debt has been defined as any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. No. 19AP-675 15 Ketchum v. Ketchum, 7th Dist. No. 2001 CO 60 , 2003-Ohio-2559 , citing Turner, Equitable Distribution of Property, Section 6.29, at 455 (2d Ed.1994, Supp.2002). {¶ 49} Sangeri's testimony indicated that his credit card debt immediately prior to his marriage of $12,981.00, and at the time of trial was $17,111.06, an increase of $4,130.06. Sangeri also testified he paid approximately $10,000.00 to his divorce attorneys using his Chase Bank and Bank of America credit cards. He was unable, however, to provide an accounting of what amount of the debt of either of these credit cards was for and whether it related to payments to his attorneys in the underlying matter. He conceded in his brief that any monies paid to his divorce counsel via credit card may be "grounds to consider some debt not marital." (Sangeri's Brief at 37.) {¶ 50} The parties stipulated that the allocation of credit card debt "shall be left to the determination of the Court." (Tr. at 71.) In the absence of any credible testimony or evidence as to what portion of Sangeri's credit card was for valid marital purposes, the trial court could not determine what, if any, of Sangeri's credit card debt was marital debt. Consequently, the trial court did not find it equitable under the circumstances to consider any portion of the parties' debt to be marital debt. The trial court found, therefore, no marital debt in this matter and ordered each party "to pay for and hold the other harmless on all personal debts and obligations." (Decree of Divorce at 9.) Given the record before us, we find the trial court did not abuse its discretion in reaching this determination. {¶ 51} Accordingly, the eighth assignment of error is overruled. 6. Ninth Assignment of Error {¶ 52} In his ninth assignment of error, Sangeri asserts the trial court erred and abused its discretion by failing to find the parties' bank accounts to be marital assets and failing to equitably divide such. {¶ 53} R.C. 3105.171(F)(2) requires the trial court to consider the parties' assets and liabilities in the event the trial court makes an equitable distribution of the marital assets. The record before us demonstrates that the trial court considered this and other factors and set forth the basis for an equitable distribution in the divorce decree. As previously discussed, the trial court specifically addressed Sangeri's lack of transparency regarding financial matters as well as the evidence that Sangeri had depleted the marital assets prior to filing for divorce, violating the temporary restraining order in the process. Having No. 19AP-675 16 addressed those inequities, the trial court determined that, in other regards, it was equitable that each party maintain their bank accounts as titled in their own name. {¶ 54} Yerra submits that, by ordering each party to keep their own bank accounts, the trial court made an equal division of the total bank account balances. Given the circumstances of this case, we agree, and find the trial court did not abuse its discretion in this regard. {¶ 55} The ninth assignment of error is overruled. 7. Tenth Assignment of Error {¶ 56} In his tenth assignment of error, Sangeri asserts the trial court erred and abused its discretion by ordering Sangeri to pay to Yerra one-half the marital value of the L-Brands Stock. {¶ 57} The trial court addressed this issue under the stipulations section of the divorce decree. The parties had stipulated that 300.88457 of Sangeri's share in L-Brands, from his Employee Stock Purchase Plan, were marital property. The parties further stipulated that, as of the date of the trial, the stock price was $24.17 per share. Thus, these shares had a total value of $7,235.14, as stipulated by the parties. Divided equally, each party would receive $3,617.57. {¶ 58} The trial court's determination incorporated the parties' stipulations as to how many shares constituted marital property and what the value of those shares was as of a date certain designated by the parties. The parties also stipulated that "[t]he division of the marital portion and whether or not it is equitable for defendant to receive value for such shall be left to the determination of the court." (Tr. at 71.) The trial court stated in the decree that the ordered distribution was determined under principles of equity. Consequently, we find the trial court did not abuse its discretion with respect to the division of the L-Brands Stock shares. {¶ 59} The tenth assignment of error is overruled. 8. Eleventh Assignment of Error {¶ 60} In his eleventh assignment of error, Sangeri asserts the trial court erred and abused its discretion by ordering a division of assets and debts that was not equitable. {¶ 61} We disagree. For all the foregoing reasons, we find the trial court did not err or abuse its discretion in division of marital assets and debts. Accordingly, the eleventh assignment of error is overruled No. 19AP-675 17 B. Attorney's Fees – Sixth Assignment of Error {¶ 62} Sangeri's sixth assignment of error assets the trial court erred and abused its discretion by granting $10,000 in attorney fees to Yerra. We disagree. {¶ 63} In divorce proceedings, a trial court may award "all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable." R.C. 3105.73(A). A trial court " 'may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate' " to determine whether an award is equitable. Rodgers v. Rodgers, 8th Dist. No. 105095, 2017-Ohio-7886 , ¶ 60, quoting Gentile v. Gentile, 8th Dist. No. 97971, 2013-Ohio-1338 , ¶ 69. {¶ 64} We have held that an award of attorney fees under R.C. 3105.73 lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Wehrle v. Wehrle, 10th Dist. No. 12AP-386, 2013-Ohio-81 , ¶ 47, citing Huffer v. Huffer, 10th Dist. No. 09AP-574, 2010-Ohio-1223 , ¶ 19, citing Parker v. Parker, 10th Dist. No. 05AP-1171, 2006-Ohio-4110 , ¶ 36. {¶ 65} Yerra testified that she had been able to pay only $2,500 to her attorney as of the time of trial. In comparison, Sangeri had paid his attorneys $10,000. Yerra directs our attention to a holding of Rodgers at ¶ 70: "Where the amount of an attorney's time and work is evident to the trier of fact, an award of attorney fees, even in the absence of specific evidence to support the amount, is not an abuse of discretion." Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio-782 , ¶ 17. Indeed, domestic relations courts often rely on their own knowledge and experience to determine the reasonableness of attorney fees. See e.g., Long v. Long, 10th Dist. Franklin No. 11AP-510, 2012-Ohio-6254 , ¶ 20 ("The trial court * * * is not required to hear [expert] testimony and may rely on its own knowledge and experience to determine the reasonableness of the amount claimed."); Lundy v. Lundy, 11th Dist. Trumbull No. 2012-T- 0100, 2013-Ohio-3571 , ¶ 55 (Trial court "may evaluate the work performed by an attorney in a domestic-relations action * * * [a]nd * * * may use its own knowledge and experience to determine the reasonableness [of] the amount claimed."); Groza-Vance v. Vance, 162 Ohio App.3d 510 , 2005-Ohio-3815 , 834 N.E.2d 15 , ¶ 44 (10th Dist.) (same); Gore v. Gore, 2d Dist. Greene No. 09-CA-64, 2010-Ohio-3906 , ¶ 39. No. 19AP-675 18 {¶ 66} The trial court explained its decision on the subject matter ordering Sangeri to pay Yerra for her attorney fees: Due to [Sangeri's] lack of transparency regarding transfers of funds around the time of his filing for divorce, large checks written to friends and family without an identified purpose, and receipt of funds from Telligen Tech, he required [Yerra] and her Counsel to use time and resources to address these issues. Whether the financial misconduct is deliberate on the part of [Sangeri] or merely his manner of doing business, it put [Yerra] in a detrimental position. Therefore, the Court awards [Yerra] $10,000 in attorney fees, and orders [Sangeri] to pay same. (Decree of Divorce at 10.) {¶ 67} We find the trial court's award of attorney fees and expenses was readily explained and within the trial court's discretion. {¶ 68} The sixth assignment of error is overruled. IV. CONCLUSION {¶ 69} For the foregoing reasons, having independently examined the record, reviewed the parties' briefs, and listened to the parties' oral arguments, we conclude the trial court did not err in its decision. Accordingly, we overrule all eleven of Sangeri's assignments of error and affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Judgment affirmed. SADLER, P.J., and NELSON, J., concur.

2020-12-03 18:02:06.386084+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2019-0556%20-%20State%20v.%20Platero%20-%20FINAL.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. PAUL RANDOLPH PLATERO, JR., Appellant. No. 1 CA-CR 19-0556 FILED 12-3-2020 Appeal from the Superior Court in Maricopa County No. CR2018-141031-001 The Honorable William R. Wingard, Judge Pro Tempore AFFIRMED COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Thomas K. Baird Counsel for Appellant  STATE v. PLATERO Decision of the Court MEMORANDUM DECISION Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined. M O R S E, Judge: ¶1 Paul Randolph Platero Jr. ("Platero") appeals his convictions and sentences for six counts of sexual conduct with a minor. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Dennis1 and his siblings moved with their mother, Melanie, to Arizona in July 2017. Before moving into their own apartment, Dennis and his family stayed approximately four weeks in a Phoenix home with various men, including Platero. ¶3 In 2018, Platero was indicted on various charges, including six counts of sexual conduct with a minor under fifteen years of age ("counts one through six"). See A.R.S. § 13-1405. The offenses were charged as a "class 2 felony" and "dangerous crime against children." See A.R.S. §§ 13- 1405(B), -705(Q)(1)(e). ¶4 Platero was tried in the summer of 2019. Dennis testified that Platero engaged him in a series of sexual encounters while staying in the same home in 2017. Dennis also testified at trial that he was eleven years old, was born in January 2008, and was nine when he and his family were staying in a home with Platero in the summer of 2017. Neither party contested Dennis's age. ¶5 A jury found Platero guilty of sexual conduct with Dennis, a minor, and further found that Dennis was under fifteen for counts one through six. The trial court's minute entry reflects that the jury rendered its verdicts at 3:15 p.m., which were then read aloud by a clerk. The trial judge 1 We adopt the pseudonym provided in the State's answering brief to refer to the victim. See Ariz. R. Crim. P. 31.10(f). 2  STATE v. PLATERO Decision of the Court then polled the jury members. Upon conclusion of the poll, the trial judge discharged the jury, stating: Folks, that concludes your service as jurors on this case, and I very much appreciate all the time and effort you put into this. It means a whole lot to our system of justice, and all of the parties appreciate it. You will be released from the admonition now. Feel free to talk about the case, not talk about the case, however you wish to handle it. But in any event, I truly do, on behalf of all the parties, wish to thank you for all of your time and effort that you've put into this. ¶6 The trial judge finished by noting that the jurors, if they so desired, were free to stick around to provide feedback to the attorneys. After the jury exited the courtroom, and the court began discussing sentencing dates, the prosecution indicated that the verdict forms for counts one through six should have included the option of finding that Dennis was under the age of twelve. The prosecution asked the court to recall the jury so it could make this further determination, and the court sent a clerk to gather the jurors back into the courtroom. Platero's defense did not object to the recall and consented to amend the verdict forms to allow the jury to find whether Dennis was under twelve years of age, "without going through the guilty/not guilty part again[.]" The jury returned and was present in the courtroom at 3:26 p.m. Addressing the jury, the trial judge explained: Folks, after you left—and I apologize for bringing you back. But after you left, we realized I had an error on the jury form. The finding as to the age of the child is not [fifteen]. It should be [twelve]. Okay? So . . . I'm going to ask you to take forms [one] through [six] back and to talk amongst yoursel[ves], just like you did for deliberations, to determine whether or not you find the child was under the age of [twelve] at the time of the offenses. And if you could just write that on these forms, I'd very much appreciate it. ¶7 After deliberating, the jury further found that Dennis was under twelve for counts one through six. ¶8 Platero timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13- 4031, and -4033(A). 3  STATE v. PLATERO Decision of the Court DISCUSSION ¶9 Platero argues the trial court violated the Fifth Amendment of the United States Constitution and committed fundamental error when it recalled the jury to determine whether Dennis was under twelve for counts one through six. He also argues that the trial court violated Article 6, Section 27, of the Arizona Constitution by commenting on evidence when addressing the jury. I. Recalling the Jury. ¶10 Platero argues the trial court erred in recalling the jury after it had been discharged. Because Platero consented to recalling the jury and amending the jury verdict forms, we review for fundamental error. State v. Henderson, 210 Ariz. 561 , 567, ¶ 19 (2005). "[T]he first step in fundamental error review is determining whether trial error exists." State v. Escalante, 245 Ariz. 135 , 142, ¶ 21 (2018). If we find error, we "must decide whether the error is fundamental." Id. An error is fundamental if "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. A defendant who establishes fundamental error under the first or second prong "must make a separate showing of prejudice," while a defendant who establishes fundamental error under the third prong has ipso facto shown prejudice. Id. "The defendant bears the burden of persuasion at each step." Id. ¶11 Platero argues that recalling the jury to deliberate on Dennis's age was fundamental error. However, because it was undisputed that Dennis was only eleven years old when he testified at trial, it is beyond implausible that any jury could have failed to find that he was under twelve at the time of the alleged offenses. See Henderson, 210 Ariz. at 570, ¶ 33 (finding no reasonable jury could have failed to find the existence of a statutory aggravator where it was undisputed that victim's age was over sixty-five). Therefore, even assuming that recalling the jury constituted error, Platero is unable to make the necessary showing that that the error caused him prejudice. Id. at 569, ¶ 28 ("We review for fundamental error to determine whether a reasonable jury, applying the correct standard of proof, could have failed to find the existence of [the] aggravator."). Because Platero cannot show prejudice, recalling the jury was not so egregious an error "that [Platero] could not possibly have received a fair trial." Escalante, 245 Ariz. at 142, ¶ 21. 4  STATE v. PLATERO Decision of the Court ¶12 Platero cites to State v. Crumley, in which a trial court recalled a discharged jury after realizing the issue of the defendant's prior convictions had been overlooked. 128 Ariz. 302 (1981). The trial court attempted to recall the jury but some of the jurors had already left the courthouse and returned home. Id. at 305 . The entire jury did not reconvene until the following morning to consider the defendant's prior convictions. Id. The Arizona Supreme Court set aside the sentence on appeal, holding: Once discharged, we think this jury could not be properly recalled to further decide an issue of this case. It is simply too dangerous a practice to discharge the individual jurors from the duties and obligations of their oath, send them back into the community without admonitions or instructions, and then recall those same jurors to make a fair and impartial determination of any remaining issue connected with the case. Id. at 306 ; see also Dietz v. Bouldin, 136 S. Ct. 1885 , 1894 (2016) (stating that federal district courts should "determine whether any juror has been directly tainted" when considering whether to recall a jury in a civil case).2 ¶13 While the Court in Crumley expressed concern with recalling jurors who had been "sen[t] . . . back into the community without admonitions or instructions," it limited its decision to "an ad hoc determination based on the narrow factual situation of this case," and, thus, did not establish a rule barring courts from ever reconvening a discharged jury for further deliberation. Id. Precedent from other jurisdictions "falls within two camps on whether a jury may be recalled after discharge . . . ." Wagner v. Jones, 758 F.3d 1030 , 1034-35 (8th Cir. 2014) (collecting cases), abrogated by Dietz, 136 S. Ct. at 1891. Some courts have declined to find that a jury can never be recalled in a criminal case. E.g., United States v. Figueroa, 683 F.3d 69 , 73 (3rd Cir. 2012) (finding the jury's release does not preclude recall if the "jurors did not disperse and interact with any outside individuals, ideas, or coverage of the proceedings"); United States v. Rojas, 617 F.3d 669 , 678 (2d Cir. 2010) ("It is significant that, although the jury had technically been declared discharged by the court, it had not dispersed. The 2 The holding in Dietz is limited "to civil cases only." 136 S. Ct. at 1895. The Supreme Court noted the "additional concerns in criminal cases, such as attachment of the double jeopardy bar," and expressly declined to address "whether it would be appropriate to recall a jury after discharge in a criminal case." Id. 5  STATE v. PLATERO Decision of the Court jurors were therefore not exposed to outside factors . . . ." (internal quotation marks omitted)); Summers v. United States, 11 F.2d 583 , 586 (4th Cir. 1926) ("[T]he mere announcement of [the jury's] discharge does not, before they have dispersed and mingled with the bystanders, preclude recalling them.") (citation omitted); State v. Clements, 423 P.3d 253 , 261-62, ¶¶ 40-46 (Wash. App. 2018) (affirming recall where verdicts had been read at 2:26 p.m. and jury reassembled in courtroom at 2:42 p.m.); People v. McNeeley, 575 N.E. 2d 926 , 929 (Ill. App. 1991) (affirming recall where the judge "could have properly concluded that the [discharged] jurors were subjected to no improper outside influences"); Masters v. State, 344 So.2d 616 , 620 (Fla. App. 1977) (placing the burden on the defendant to prove outside influence on a jury during the period of discharge). But other courts have applied a bright- line rule against jury recall following discharge. E.g., State v. Green, 995 S.W.2d 591 , 614 (Tenn. Crim. App. 1998) ("[O]nce a jury in a felony case has been discharged and outside contacts may have occurred, the jury may not be reconvened for the purpose of taking further action involving the accused") (internal quotation marks omitted); Blevins v. State, 591 N.E.2d 562 , 563 (Ind. App. 1992) ("Any action of the jury after its discharge is null and void."); People v. Rushin, 194 N.W.2d 718 , 721-22 (Mich. App. 1971) (finding error where jury reconvened after leaving the courtroom, "be it for two minutes or two days"); Melton v. Commonwealth, 111 S.E. 291 , 293 (Va. 1922) ("When the court announces their discharge, and they leave the presence of the court, their functions as jurors have ended, and neither with nor with without the consent of the court can they amend or alter their verdict."). ¶14 This case does not present the "narrow factual situation" that was present in Crumley. 128 Ariz. at 306 . There, when the court tried to recall the jury, two of the jurors had already returned home and at least some of the jurors did not return to the courtroom until the following morning. Id. at 305 . In contrast, each of the jurors in this case returned to the courtroom only minutes after discharge, and there is no indication that the jurors had left the courthouse. Indeed, the jury was present in the courtroom at 3:15 p.m. before returning their initial verdicts, which were then read aloud by the clerk. After discharge, the jurors were gathered back to the courtroom by 3:26 p.m. and had been gone for less than ten minutes before returning for further deliberation. ¶15 Platero points out that we have no record of the emotions to which the jurors may have been exposed, whether they had discussions with non-jurors, or what phone calls or text messages they may have made to family and friends during the brief period between their discharge and recall. See Dietz, 136 S. Ct. at 1894-95 (stating that federal district courts 6  STATE v. PLATERO Decision of the Court should consider "whether the jurors have spoken to anyone about the case after discharge[,]" "the reaction to the verdict[,]" and the "extent just- dismissed jurors accessed their smartphones or the internet"). Although the best practice would have been for the trial court to conduct an inquiry to "determine whether any juror ha[d] been directly tainted," id. at 1894, Platero consented to re-empaneling the jury and did not ask the court to make such an inquiry, see Dietz v. Bouldin, 794 F.3d 1093 , 1099 n.6 (9th Cir. 2015) (stating that an inquiry into whether jurors were exposed to compromising influences "may not be necessary where the parties have explicitly stipulated to the recall procedure"), aff'd, 136 S. Ct. 1885 (2016); see also Clements, 423 P.3d at 262, ¶ 43 (noting that when the jury reconvened within sixteen minutes after verdict had been read that "[t]he time was so short that neither a cautious court nor counsel expressed a need to question the jurors about what they had been doing in those few minutes"). ¶16 Because he did not object below, the burden is on Platero to establish that any fundamental error caused him prejudice, Escalante, 245 Ariz. at 142, ¶ 21, and mere speculation about what the jurors may have been exposed to in the minutes between discharge and recall is insufficient to carry that burden, see State v. Riley, 248 Ariz. 154 , 180, ¶ 88 (2020) (affirming convictions where defendant pointed to no evidence that he was prejudiced by an allegedly erroneous trial instruction and merely asked the court "to speculate that the jurors were misled or confused"); cf. also Dietz, 136 S.Ct. at 1896 ("There is no benefit to imposing a rule that says that as soon as a jury is free to go a judge cannot rescind that order to correct an easily identified and fixable mistake, even as the jurors are still in the courtroom collecting their things."). ¶17 The lack of any potential prejudice and the immediate return of the jury only minutes after discharge persuade us that the trial court did not commit fundamental, prejudicial error. See Escalante, 245 Ariz. at 138, ¶ 1. II. Double Jeopardy. ¶18 Platero also argues that the trial court placed him in double jeopardy and violated his due process rights when it recalled the jury to determine whether Dennis was under twelve for counts one through six. See U.S. Const. amend. V ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ."). 7  STATE v. PLATERO Decision of the Court ¶19 We fail to find that the trial court ever subjected Platero to double jeopardy or deprived him of due process. The state indicted Platero on charges of committing sexual conduct with a minor under fifteen years of age, a "class 2 felony" and "dangerous crime against children," in violation of A.R.S. § 13-1405 and -705. When the jury returned its initial verdicts finding Platero guilty as charged, he became subject to an enhanced sentence under A.R.S. § 13-705. See A.R.S. § 13-1405(B) ("Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to § 13-705."). Section 13-705 imposes enhanced sentencing for persons convicted of sexual conduct with a minor under twelve years of age. See A.R.S. § 13-705(A) (providing that an adult convicted of a dangerous crime against children in the first degree involving sexual conduct with a minor who is twelve or younger shall be sentenced to life imprisonment); see also A.R.S. § 13–705(B) (providing that the same may be sentenced to life imprisonment, or alternatively, to a term between thirteen and twenty-seven years). Thus, when the jury was recalled, it determined whether Platero would be subject to an enhanced sentence, not whether Platero was guilty of any new offense. See Rev. Ariz. Jury Instr. ("RAJI") Statutory Crim. 7.05 (jury instructions) (5th ed. 2019) ("The sentence under A.R.S. § 13-705 differs depending on the age of the victim. Therefore, the jury will still have to find the age of the child as part of its aggravation verdict."). ¶20 Because the jury was recalled only to determine whether a sentence-enhancing aggravator existed—whether Dennis was under twelve at the time of the alleged offenses—the trial court did not subject Platero to double jeopardy. See State v. Anderson, 210 Ariz. 327 , 348, ¶ 87 (2005) (holding that "use of a second jury during the aggravation and penalty phases does not constitute double jeopardy"); State v. Ring, 204 Ariz. 534 , 548, ¶ 27 (2003) (noting that, except for in capital sentencing proceedings, "[d]ouble jeopardy principles generally do not apply to sentencing proceedings") (citing United States v. DiFrancesco, 449 U.S. 117 , 132 (1980)). III. Commenting on Evidence. ¶21 Platero claims the trial court coerced a guilty verdict by commenting on evidence in violation of Article 6, Section 27, of the Arizona Constitution, which provides that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Because Platero did not object to the trial court's statements, we review for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19 . "A judge violates Arizona's constitutional prohibition against commenting on evidence by 8  STATE v. PLATERO Decision of the Court expressing an opinion as to what the evidence proves, in a way that interferes with the jury's independent evaluation of that evidence." Riley, 248 Ariz. at 179, ¶ 85 (internal quotation marks omitted). "An abstract instruction may amount to a comment on the evidence if the instruction indicates the trial judge's opinion regarding some evidence of the case." Id. We will not reverse for technical error in pleadings or proceedings "when upon the whole case it shall appear that substantial justice has been done." Ariz. Const. art. 6, § 27. ¶22 Platero argues that the trial judge's statement that "[t]he finding as to the age of the child is not [fifteen] . . . [i]t should be [twelve]" was a "comment" on evidence which the jury may have misunderstood as a directive to find that Dennis was under twelve. However, the court prefaced this statement by explaining that it had made an error on the jury verdict forms and followed it up by instructing the jury "to talk amongst yoursel[ves], just like you did for deliberations, to determine whether or not you find the child was under the age of [twelve] at the time of the offenses." Read together, we do not see these statements as indicating to the jury that the judge had formed an opinion about Dennis's age. Riley, 248 Ariz. at 179, ¶ 85. Instead, it is apparent the trial judge was clarifying an earlier error with the verdict forms and explaining that the jury needed to determine, for themselves, whether Dennis was under twelve for charges one through six, rather than whether he was under fifteen. ¶23 Moreover, even were we to assume that the trial judge's statements were an impermissible "comment" on the evidence, Platero fails to show how the error caused him prejudice. See State v. Diaz, 110 Ariz. 32 , 35 (1973) (noting that a judge's comment on evidence is error where prejudicial). Mere speculation about how a jury may have confused an instruction is insufficient to prove prejudice. See Riley, 248 Ariz. at 180, ¶ 88. Moreover, because it was undisputed that Dennis was eleven years old at the time of trial, no reasonable jury could have possibly failed to find that Dennis was under twelve for counts one through six. See Henderson, 210 Ariz. at 570, ¶ 33 . Any theoretical error with the judge's instructions did not prejudice Platero. See Escalante, 245 Ariz. at 142, ¶ 21. 9  STATE v. PLATERO Decision of the Court CONCLUSION ¶24 We affirm Platero's convictions and sentences. AMY M. WOOD • Clerk of the Court FILED: AA 10

2020-12-03 18:17:03.501501+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A24024-20m - 104623289121217818.pdf

J-A24024-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: M.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: S.S., NATURAL FATHER : : : : : : No. 365 WDA 2020 Appeal from the Order Dated February 5, 2020 In the Court of Common Pleas of McKean County Orphans' Court at No(s): 42-18-0254 IN THE INTEREST OF: S.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: S.S., NATURAL FATHER : : : : : : No. 366 WDA 2020 Appeal from the Order Dated February 5, 2020 In the Court of Common Pleas of McKean County Orphans' Court at No(s): 42-18-0255 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 03, 2020 S.S. (“Father”) appeals from the order terminating his parental rights to M.S. and S.S. (“Children”). Father maintains the court erred in finding that the McKean County Children and Youth Services (“CYS”) proved by clear and convincing evidence that termination was proper. We affirm. In December 2016, the trial court granted CYS emergency custody of M.S., born December 2014. S.S. was born in February 2018, and the court J-A24024-20 granted CYS’s request for emergency custody the month afterward, in March 2018. In October 2018, CYS filed a petition for involuntary termination of Father’s parental rights as to both Children. Father and V.H. (“Mother”) were in a volatile and abusive relationship. Police responded to their home on numerous occasions for domestic disputes. N.T., 10/25/19, at 43. One such incident occurred in February 2017, when Mother went to the emergency room for a head injury, and told the emergency room nurse that Father had hit her with a closed fist. Father and Mother continued to be in a relationship in May 2018, and there continued to be episodes of physical violence, including an incident in March 2018 that resulted in criminal charges against both Mother and Father. N.T, 10/25/19, at 36-43; N.T., 7/26/19, at155. Father also has a history of abuse against others. Father pled guilty in August 2015 to one count of aggravated assault – victim less than 6 years of age, and received a sentence of six to 23½ months’ imprisonment. N.T., 7/26/19, at 140-46. Father also had an indicated finding of abuse of a child. Id. at 150. These incidents were 11 to 15 years before the termination hearing. Id. at 151. Father has employment in the oil field industry, and works away from his home in McKean County for multiple weeks each month. N.T., 10/25/19, at 58. When he is working, he is unable to provide care for Children. Father was inconsistent with visiting with Children. N.T., 7/26/19, at 157. A CYS case aid, Shaina Burgett, testified that she supervised 14 visits, -2- J-A24024-20 and that Father did not cancel any visits she supervised, except those that were pre-arranged cancellations due to work. N.T., 11/8/19, at 12. She stated, however, that Father fell asleep with S.S. during two visits. She testified that Father said that if he fell asleep while alone with Children, “[M.S.] was old enough and good enough that he could sit there and keep himself occupied while” Father was sleeping. Id. at 13. Father’s goals included obtaining an anger management-focused mental health evaluation and following any recommendations. Father completed the evaluation, but did not follow the recommended treatment plan. N.T., 7/26/19, at 157. S.S. has had pneumonia five times, and was twice life-flighted to Pittsburgh—in December 2018 and June 2019. N.T., 1/17/20, at 193. In December 2018, Foster Mother called Father to inform him that S.S. was being sent to Pittsburgh because S.S. was in distress. Id. at 194. Father responded that he was working near Pittsburgh and would visit the next day. Id. at 195. Father arrived the next morning, which was a Friday. Id. at 196. S.S. was released from the hospital the following Friday. Father only visited three to four times. Id. at 198. During the June 2019 hospitalization, Father was more present. Id. at 201-02. Foster Mother further testified that she rode the helicopter with S.S. and that she stepped in when medical providers were unable to place an I.V. in S.S.’s arm, insisting they wait for the helicopter, where more experienced professionals could assist. Id. at 249. -3- J-A24024-20 An expert in clinical psychology and in bonding assessments, Dr. Peter von Korff, testified that M.S. finds security with Foster Parents. M.S. was “very reluctant” and “slow and hesitant” to approach Father. N.T., 7/26/19, at 48. Dr. von Korff testified that Father has an avoidant approach to attachment. Id. at 53. Dr. von Korff testified that S.S. was not comfortable with Father, and was eager to return to Foster Parents. Id. at 56-57. He further testified that S.S. “could not have been more relaxed” with Foster Mother. Id. at 57. She was engaged, happy, playful, and responsive with Foster Mother. Id. Dr. von Korff testified that Children had secure attachments with Foster Parents. Id. at 68. Dr. von Korff testified that, although it might be possible for Mother and Father to form a “primary bond” with Children, he questioned whether that bond would be secure. Id. at 77. He testified that although M.S. has a “tentative relationship with both [Parents], that his secure functioning is with the [Foster Parents], and that if severance takes place, that he will be able to rely on that secure functioning.” Id. at 79. The trial court terminated Father’s rights to Children, finding termination proper under Section 2311(a)(1), (2), (5), and (8), and Section 2311(b).1 Father filed a timely notice of appeal. Father raises the following issue: “Whether the trial court abused its discretion in finding that McKean County Children and Youth Services ____________________________________________ 1The court also terminated Mother’s parental rights. Mother appealed, and we address her appeals at docket 371 WDA 2020 and 372 WDA 2020. -4- J-A24024-20 produced clear and convincing evidence to support an involuntary termination, under 23 Pa.C.S.A. Section 2511(a)(1),(a)(2),(a)(5) and (a)(8), of the Appellant’s parental rights.” Appellant’s Br. at 8. When we review termination of parental rights cases, we “accept the findings of fact and credibility determinations of the trial court if they are supported by the record.” In re T.S.M., 71 A.3d 251 , 267 (Pa. 2013) (citation omitted). “If the factual findings have support in the record, we then determine if the trial court committed an error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470 , 473 (Pa.Super. 2018). We may reverse a trial court decision “for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will.” In re Adoption of S.P., 47 A.3d 817 , 826 (Pa. 2012). A party seeking to terminate parental rights has the burden of establishing grounds for termination by clear and convincing evidence. See In re Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” Id. (citation and internal quotation marks omitted). Termination of parental rights is controlled by Section 2511 of the Adoption Act. See In re L.M., 923 A.2d 505 , 511 (Pa.Super. 2007). Under Section 2511, the trial court must engage in a bifurcated analysis prior to terminating parental rights: -5- J-A24024-20 Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. Id. (citations omitted). Here, the trial court terminated Father’s parental rights pursuant to multiple subsections, including Subsection 2511(a)(1). That subsection provides: (a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. 23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to subsection (a)(1) . . . , the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b). Subsection 2511(a)(1) requires the moving party to prove by clear and convincing evidence that the subject parent engaged in “conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties.” In re Z.S.W., 946 A.2d 726 , 730 -6- J-A24024-20 (Pa.Super. 2008). The parental obligation is a “positive duty which requires affirmative performance” and “cannot be met by a merely passive interest in the development of the child.” In re C.M.S., 832 A.2d 457 , 462 (Pa.Super. 2003) (quoting In re Burns, 379 A.2d 535 (Pa. 1977)). Indeed, [p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs. In re B., N.M., 856 A.2d 847 , 855 (Pa.Super. 2004) (citations omitted). The trial court concluded CYS presented clear and convincing evidence to establish grounds for termination of parental rights under Section 2511(a)(1). It concluded that Father has not been, and would not be, a placement option for Children due to his “inability to control his anger and past physical assault of Mother and a different child,” and his “unavailability, both past and future, to provide care for the children due to his work schedule.” Trial Ct. Op. at 3. The court found that Father had failed to perform parental duties during the required six-month period: Parents are required to act affirmatively with good faith interest and effort to perform parental duties. . . . Father ha[s] not done that. Since M.S. and [S.S.] were born Father has not been available to provide care. He works in the oil and gas industry and is unavailable for extended periods of -7- J-A24024-20 time each month. His worksites are out of the McKean County area, often out of state. When he is working there is no opportunity for him to have contact with the children. Father has a history of violence, including a long history of domestic violence involving Mother and the assault and significant injury to a . . . child. He was ordered to obtain a mental health evaluation, focusing on anger management, and follow his recommended treatment plan. As set forth in the May 9, 2018, Permanency Review Findings in M.S.’s dependency case, Father obtained an evaluation to address his inability to control his anger but, due to his work schedule, did not follow through with his appointments. The court finds that Father has not benefited from treatment; and, he still struggles with controlling his anger and acting out physically. This finding is also supported by the fact that violence between Father and Mother continued after Father's evaluation. ... S.S. has no connection to Parents as she has had limited contact with them; and, [Foster Parents] have provided care and support for her since she was born. There are numerous examples of the care and support [Foster Parents] have provided for both children in this record (and Parents’ unavailability). One in particular demonstrates both the commitment [Foster Parents] have to the children and the children’s recognition of [Foster Parents] as their parental figures. [Foster Mother] described S.S’s first life flighted to Pittsburgh. S.S. was in desperate need of an IV. It was required before she take the flight and needed as she was dehydrated. Parents were not at the hospital and S.S. was in [Foster Mother’s] arms. The medical staff attempted, again and again, to stick a needle in her and find one of her tiny veins. S.S. would scream and squirm each time an attempt was made. [Foster Mother], looking out for S.S., said: “enough,” telling the medical staff that the team on the helicopter had more experience inserting an IV in a young child and they needed to wait until they arrived. [Foster Mother] was the one there when the flight team arrived, when they grabbed S.S. and held her down while they inserted a needle in her to give her the IV. [Foster Mother] was the one that heard the babies’ terrified screams and she was the one that comforted S.S. afterwards. -8- J-A24024-20 Regarding the statutory grounds for termination the court finds that CYS has established, by clear and convincing evidence, the following: For over twelve months . . . Father . . ha[s] been unable to provide safe and appropriate care for S.S. and ha[s] failed to make reasonable efforts towards reunification. By [his] actions and [his] inaction [he has] demonstrated a settled purpose to relinquish and/or refuse to perform their parental duties. In addition, the cause of the Parents’ inability to take any meaningful action is unlikely, even with the assistance of reasonable services or assistance, to be remedied in the future. Trial Court Opinion, filed Feb. 5, 2020, at 12-14. The court did not err as a matter of law or abuse its discretion. Father’s conduct prior to the filing of the termination petition, and sustained for at least six months before the filing, revealed a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. Father did not consistently visit with Children, continued to have a violent relationship with Mother, continued to work in a field that required him to be away from the children for multiple weeks every month, and did not follow through with his permanency goals. Under Section 2511(b), the court must consider “the developmental, physical and emotional needs and welfare of the child” to determine if termination of parental rights is in the child's best interest. See 23 Pa.C.S.A. § 2511(b). The focus under Section 2511(b) is not on the parent, but on the child. In re Adoption of R.J.S., 901 A.2d 502 , 514 (Pa.Super. 2006). This inquiry involves “[i]ntangibles such as love, comfort, security, and stability . . . .” In re C.M.S., 884 A.2d 1284 , 1287 (Pa.Super. 2005). The trial court “must also discern the nature and status of the parent-child bond, with utmost -9- J-A24024-20 attention to the effect on the child of permanently severing that bond.” Id. Importantly, “[t]he mere existence of an emotional bond does not preclude the termination of parental rights.” In re N.A.M., 33 A.3d 95 , 103 (Pa.Super. 2011). Rather, the trial court “must examine the status of the bond to determine whether its termination would destroy an existing, necessary and beneficial relationship.” Id. (internal quotation marks and citation omitted). Further, “[c]ommon sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents.” In re T.S.M., 71 A.3d 251 , 268 (Pa. 2013). The trial court concluded termination would best meet S.S. and M.S.’s developmental, physical, and emotional needs and welfare. It found that Children know foster parents are there for them, good or bad, and that M.S. had a negative bond with Father while S.S. had no bond with him: M.S. has a negative bond with Parents. He has already, despite what the court or others may say, concluded that [the foster parents] are his parental figures and providers. It would be beneficial to M.S. to sever the negative bond he has with Parents and provide him with assurance that the stability he has experienced with the [foster parents] will be permanent. It would be extremely traumatic to M.S. and S.S. to expand visits with Parents or place them in their care. S.S. has a strong bond with [the foster parents] and no bond with Parents. Therefore, it best fulfills her needs and welfare to terminate parental rights and allow [the foster parents] to adopt [S.S.] and M.S. 1925(a) Op. at 14. - 10 - J-A24024-20 The trial court did not err or abuse its discretion in finding termination would best meet Children’s physical, social, and emotional needs and welfare. The testimony at the hearing, including from Dr. von Korff, was that S.S. did not have a bond with Father and M.S. had a negative bond. However, Children had a positive bond with Foster Parents, whom they looked to for love and support. In sum, the record supports the trial court’s factual findings, and it did not abuse its discretion in terminating Father’s parental rights to Children. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2020 - 11 -

2020-01-17 22:02:08.13405+00

Green

*201OPINION. GREEN: The parties have proceeded upon the assumption that the taxes for the year 1925 are in controversy. The respondent has proposed no deficiency for that year. Neither has he rejected claim in abatement for that year. We must, therefore, on our own motion, dismiss the proceeding, as' far as it pertains to the year 1925, for lack of jurisdiction. Sowers Manufacturing Co., 16 B. T. A. 268, 272. As to the remaining years 1921 to 1924, inclusive, the question is as to the total cost of the lots sold during those years and the amount to be allocated to each lot as its cost. The respondent determined that the total cost of all the lots to the petitioner was $197,542.90, as set out in our findings. He further determined that $127,605.66 of the $197,542.90 represented the cost of the lots sold during the years 1921 to 1925, inclusive, and that the balance, or $69,937.24, represented the cost of the lots remaining unsold on December 31, 1925. *202According to the schedules attached to the petition, the petitioner, at the time the petition was filed, contended that the total cost of the lots to it was $237,956.71,- made up as follows: Original cost of land_$110, 000. 00 Improvements: 1922_$28, 532.15 1923_ 16, 257.45 1925_ 44, 454. 24 - 89, 243. 84 Interest and taxes (1915-1920)_ 38, 712. 87 Total cost_ 237, 956. 71 It further contended, as set out in the schedules attached to the petition, that the total cost of $237,956.71 should be allocated to the lots sold and unsold, as follows: Lots sold during year— Cost 1921_ $13,781.75 1922_,_i_ 41,297.14 1923_ 42,123. 41 1924_ 33, 286. 77 1925_1- 32,193. 68 162, 682. 75 Lots remaining unsold at December 31, 1925_ 75,273. 96 Total cost of all lots_ 237. 956. 71 No evidence was offered as to the cost of improvements. The respondent’s determination of the cost of improvements is, therefore, sustained. The respondent in his determination did not include, as a part of the cost of the lots sold, any portion of the amount of $38,712.87 representing interest and taxes paid on the Rosemont property during the years 1915 to 1920, inclusive. As already stated, the petitioner, in the schedules attached to its petition, contended that the full amount of $38,712.87 should be capitalized as a part of the cost of the property. In its brief, however, it concedes that such part of the $38,712.87 as it had allocated to the cost of the lots sold during the years 1921, 1922, and 1923 should be eliminated as representing a part of such cost, or, in other words, that on the lots sold during the years 1921, 1922, and 1923, the cost should not include any amount paid for interest and taxes during the years 1915 to 1920, inclusive. See Ottawa Park Realty Co., 5 B. T. A. 474; Arthur C. Fraser, 6 B. T. A. 346; affd., C. C. A. 2d Cir., 25 Fed. (2d) 653; and Westerfield v. Rafferty, 4 Fed. (2d) 590. On page 2 of its brief, the petitioner states: The respondent and the petitioner have agreed that the carrying charges totalling $38,712.87 shall be eliminated in computing the taxable gain on the sale of the lots for the years 1921, 1922 and 1923 and shall be included as it affects each lot in computing the taxable profit for the years 1924 and 1925. *203The admission made by counsel for the respondent at the close of the hearing, was as follows: May it please your Honor, I want to make an admission of record, though, with reference to the carrying charges for 1924 and 1925. The respondent will admit that they may be included as part of the costs, but, of course, the allocation, the respondent contends, would be on the pro rata basis. As to those expenses for 1921 and 1922, it is the respondent’s position that the law has been well settled in Westfield vs. Rafferty, 4 Fed. 2nd. 590, a decision by the District Court in New York, I believe. Now, in reference to the carrying charges in 1924 and 1925, Article 1561, Regulations 65, settles it as far as the Commissioner’s position is concerned. In other words, they say they may be included as a part of the cost of the lot where they have not been deducted during the current year. Well, the proof here is very clear that they did not deduct it in the years in which they were paid. They had no income. They were not deducted on their books at that time. This admission is so ambiguous that we must disregard it altogether. It refers specifically to “ carrying charges for 1924 and 1925 ” as to which there are no facts in the record, the only facts relative to any so-called carrying charges being that during the years 1915 to 1920, inclusive, the interest and taxes amounting to $38,712.87 were paid on the Rosemont property. The respondent’s determination that the total cost of the property was $197,542.90 should not, therefore, be disturbed. See, also, Central Real Estate Co., 17 B. T. A. 776. With respect to the allocation of the cost of the property to the lots sold during the taxable years, the evidence is likewise insufficient to prove that the respondent’s allocation was erroneous. The respondent’s determination was based upon a revenue agent’s report. The report was admitted in evidence as petitioner’s Exhibit No. 1. Therein, the agent stated that he used the cost that was shown on the petitioner’s books. But there was testimony at the hearing to the effect that at that time the petitioner had made no allocation of cost to each separate lot, so we do not know how the cost used by the respondent was actually determined. Subsequent to the agent’s examination, the petitioner employed a certified public accountant to ascertain the total cost of the property and to allocate to each separate lot a portion of such cost. The accountant’s report was not placed in evidence. The petitioner was satisfied to rest with testimony to the effect that the lots in Block 1 were more valuable in 1915 than those in Block 19. But there is no evidence tending to show in dollars and cents the cost which should be allocated to each separate lot sold during the years in question, nor is there any evidence as to the cost of each lot as determined by the respondent and in the absence of such evidence, we must give judgment for the respondent. There is another matter which we think should be mentioned, and that has to do with the selling price of the lots. It is not an issue in the case, and neither party makes any contention that the sales *204price is in issue. But the petitioner sought to have the record show the exact location and sales price of each lot, which were facts not shown in the revenue agent’s report. To this end it was stipulated at the hearing that the sales price of each lot, as set forth in the schedule attached to the petition, was correct. It was also agreed that the respondent’s determination of the total sales was correct. Upon examination of the schedule, however, we find that there is a discrepancy of $100 between it and the respondent’s determination of the total sales for the year 1921, and a like discrepancy of i>512.81 for the year 1922. The record does not show what the respondent determined the sales to be for the years subsequent to 1922, and we are unable to make a comparison as to those years. But on account of the discrepancies already disclosed, we are unable to make a finding as to the selling price of each lot, together with its block location. Judgment will be entered for the respondent.

2020-01-17 22:02:08.169048+00

Smith

*207OPINION. Smith : The errors alleged in the petition relate to the inclusion of certain dividends in petitioner’s taxable income for the years 1920 and 1921 and to the exclusion from taxable income for the year 1921 of a claimed loss on the sale of securities, but the issues before us are (1) whether or not the petitioner made a valid gift to his wife in the year 1920 of certain shares of stock in the Champion Connellsville Coke Co. and in the Genuine Connellsville Coke Co., and (2) whether the petitioner made a bona fide sale in the year 1921 to his wife of certain other shares in Masontown Brewing Co. and in the Republic Brewing Co. Although considerable testimony and a number of exhibits were introduced at the hearing, the positive facts established by the record are very meager. An examination of the record discloses that the petitioner testified that he gave certain shares of stock to his wife and sold certain other shares of stock to his wife; that all of the certificates evidencing such shares were delivered to her; that she placed all of the certificates in an envelope and that she deposited them in a safe-deposit box, yet nowhere in the record does any affirmative testimony appear showing the exact date on which these transactions occurred. On the contrary, it is apparent that the petitioner was very careful to testify generally upon those points and not to state an exact date. The certificates of stock in the Champion Connellsville Coke Co., numbered 11, 12, 24, and 25, which the petitioner claims he gave to his wife on April 4, 1920, shows discrepancies both with respect to the purported date of assignment and the cancellation thereof, and each of the certificates of stock in the Genuine Connellsville Coke Co., numbered 16, 17, and 18, which the petitioner claims he gave to his wife on April 4, 1920, also shows certain discrepancies thereon. Furthermore, it is significant that the shares of stock which the petitioner claims he gave to his wife in 1920 were valuable and during the years 1920 and 1921 paid dividends in the sum of $4,650 and $2,000, respectively, all of which were paid to and received by the petitioner, as none of such shares were transferred upon the books of the issuing corporation. Also, it is noted that the shares of stock which the petitioner claims he sold to his wife in 1921 were of little or no value and that the consideration which the petitioner claims he received in return therefor, namely, Liberty bonds of the face value of $1,500, was greatly less than the original cost to the petitioner of such shares, the March 1, 1913, value of which is not disclosed. *208In numerous cases we have had occasion to refer to the essential elements of a valid gift. In Margaret M. Edson, 11 B. T. A. 621, we said: For a determination of the question of the validity of a gift inter vivos certain definite and well recognized rules Rave been formulated. Presupposing parties legally competent to act there must be (1) a definite intention on the part of the donor to make an absolute gift; (2) delivery of the subject matter of the gift; and (8) acceptance by the donee. The rule has been stated by a few of the numerous authorities as follows: * * * Among the indispensable conditions of a valid gift are the intention of the donor to absolutely and irrevocably divest himself of the title, dominion, and control of the subject of the gift in praesenti at the very time he undertakes to make the gift; * * * (Allen-West Commission Co. v. Grumbles, 129 Fed. 287.) * * * Gifts inter vivos of personal property, to be effective, must be accompanied by the delivery of the possession, the donor parting with all present and future dominion over it; the donor must be divested of, and the donee invested with, the right of property in the subject of the gift; it must be absolute, irrevocable, without any reference to its taking effect at some future time; and without such proof, clear and explicit, the gift fails. (Bowen v. Kutzner, 167 Fed. 281.) But it is the intention of the alleged donor to give away his property, not the intention of the alleged donee, or his hope or belief, that conditions a valid gift. The clear and certain intention of the donor presently and forever to part with his property is indispensable to such gift. * * * (Snavely v. Henderson, 204 Fed. 978.) * * * To constitute a valid gift inter vivos, there must be an intention to give, and a delivery unto the donee, or to some one for him, of the property given. An intention of the donor to give is not alone sufficient. The intention must be executed by a complete and unconditional delivery. Neither will a delivery be sufficient unless made with an intention to give. The transaction must show a completely executed transfer to. the donee of the present right of property and the possession. The donee must become the owner of the property given. [Authorities cited.] (In re Soulard’s Estate, 141 Mo. 642; 43 S. W. 617.) The record in the instant 'pi’oceeding is wholly silent as to acceptance by Antoinette B. Hempstead and the only evidence of delivery is the testimony of the petitioner, which fails to establish the definite date upon which that act occurred. While it is undeniably true that if the petitioner made a valid gift to his wife of the shares of stock in question in April, 1920, any dividends received after that date became her property and should not be included in his taxable income, we are convinced from the very confusing record existing here that the petitioner has failed to establish the making of a bona fide gift of the stock to his wife, either in the year 1920 or in any other year prior to the year 1925, when his books were examined by a revenue agent. Cf. Lust v. Miller, 4 Fed. (2d) 293; Lee v. Lee, 5 *209Fed. (2d) 767; P. B. Fouke, 2 B. T. A. 219; S. L. Fowler, 6 B. T. A. 250; Richard Tuflli, 13 B. T. A. 1255; and Edwin B. Michael, Administrator, 16 B. T. A. 1365. Consequently, the first issue must be resolved in favor of the respondent, who committed no error in including the amounts of $4,650 and $2,000 as dividends in the taxable net income of the petitioner for the years 1920 and 1921, respectively. With respect to the remaining issue, the record does not disclose that the shares of stock in the Masontown Brewing Co. and in the Republic Brewing Co. were ever transferred on the books of the respective corporations. The cancellation date appearing on the face of the certificates of stock in the Masontown Brewing Co. is June 3, 1925. This date is followed by the initials “ P. H. R.” which appear to be those of the treasurer of the corporation, P. H. Ralston, whose signature appears on the face of the certificates. The certificates of stock in the Republic Brewing Co. bear the word “ canceled ” without date or initials, and the word “ cancelled ” did not appear on the certificates in April, 1925, when the revenue agent made his first examination. The books and records of the petitioner and his wife do not disclose any entries relating to the sale of the shares of stock in question during the year 1921. All of the certificates involved in this proceeding were at all times kept in a single safe-deposit box to which the petitioner had independent access and control and at the time the revenue agent made his first examination they were not segregated in' the safe-deposit box, either by means of a separate envelope or otherwise. The record is ambiguous with respect to the consideration which the petitioner claims he received for the stock, the evidence showing in one instance that the consideration consisted of cash and in another instance that it consisted of Liberty bonds of a face value of $1,500. Furthermore, the record fails to disclose positive testimony relating to the specific date on which the sale is claimed to have been made. Counsel for the respondent submits that there appears to be no reason why a transaction between husband and wife should not be as clearly defined and as fully consummated as transactions involving other persons, especially where the transactions appear to be made for the purpose of reducing taxes. In P. B. Fouke, supra, which involved the question of the existence of a bona fide sale of certain securities between husband and wife, we said: While there is no question that husband and wife may contract with each other — may buy from and sell to each other — in all such transactions the close relationship of husband and wife is, nevertheless, to be borne in mind, and such transactions are peculiarly subject to scrutiny when they involve the rights of third parties. This applies either to the rights of creditors or to the rights *210of taxing authorities. Husband and wife may not play fast and loose with their respective properties to the prejudice of creditors, nor may they do the same thing to the prejudice of taxes which they properly owe to the Government. In view of the foregoing, we are entirely unconvinced that the petitioner made a bona fide sale of certificates of stock in the Masontown Brewing Co., numbered 187, 191, and 258, and certificates of stock in the Republic Brewing Co., numbered 121,124,199, and 237, to his wife on April 4,1921, or upon any other date in that year. Furthermore, it is noted that the certificates in question were acquired by the petitioner prior to March 1, 1913, and that the March 1, 1913, value of such certificates remains undisclosed. Consequently the second issue must also be resolved in favor of the respondent. Judgment will he entered for the respondent.

2020-01-17 22:02:08.199565+00

Teammell

*25OPINION. Teammell: The petitioner contends that the loss resulting in 1921 from the payment in that year of the amount of $467,302.23 under his agreement with Shank & Co. to indemnify or guarantee it against loss on the erection of the hospital was a net loss within the meaning of section 204 (a) of the Revenue Act of 1921, and that it more than offsets his income for 1922, thereby resulting in no tax liability for that year. Section 204 (a) of the Revenue Act of 1921 provides in part as follows: That as used in this section the term' “ net loss” means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business) * * *. The question before us is whether the loss sustained by the petitioner under the circumstances set out in our findings of fact constitutes a loss resulting from a trade or business regularly carried on by the petitioner. The petitioner urges that the loss resulted from his being president of the Edward Hines Lumber Co., and in which he was regularly. engaged. We think there is no question but that the petitioner was regularly employed as president of the lumber company and have found as a fact from his own testimony that he had no other trade or business. The loss that we are here considering resulted directly from the petitioner having agreed to indemnify or guarantee Shank & Co. against loss in the erection of the hospital. The Government contemplated building a frame structure on the speedway site, but the petitioner was so desirous that a fireproof structure be erected that he agreed to make a contribution of $1,000,000 toward the erection thereof, and also guaranteed the contractor against loss. From the evidence in the *26case it is not shown that the loss here involved resulted from the operation of any trade or business regularly carried on by the petitioner. While the petitioner acquired certain mortgage securities on the site where the hospital was erected because of his being president of the lumber company, the loss involved here is not connected with such securities but arises from the agreement guaranteeing Shank & Co. against loss. We have heretofore had occasion to consider the meaning of the term “ trade or business regularly carried on ” as used in section 204 of the Revenue Act of 1921 and have held that it means a vocation and not occasional or isolated transactions. J. J. Harrington, 1 B. T. A. 11; Fridolin Pabst, 6 B. T. A. 843. Since the agreement guaranteeing Shank & Co. against loss appears to be the only- one of its or a similar kind ever entered into bj^ the petitioner, we think it comes within the class of occasional or isolated transactions. Inasmuch as the petitioner’s loss was sustained in an occasional or isolated transaction, it did not constitute a net loss within the meaning of section 204 of the Revenue Act of 1921. The action of the respondent in refusing to apply the net loss for 1921 against the net income for 1922 is therefore approved. At the hearing the respondent amended his answer as follows: “ Respondent avers that in allowing a deduction of $17,347.15 from taxable income for the year 1922, he was in error and further avers that said amount should be restored to taxable income for said year.” The respondent contends that the total amount expended by the petitioner under his agreement to guarantee Shank & Co. against loss constituted an additional contribution toward having the hospital built and, since there was no one to reimburse the petitioner for the payment of Shank & Co.’s loss, the petitioner’s agreement really was an agreement to make as an additional gift whatever amount Shank & Co. lost in the completion of the hospital. For the amount to be deductible as a loss it would have to be a loss incurred in trade or business or one incurred in a transaction entered into for profit though not connected with the trade or business. We think it is clear that the petitioner was not engaged in the indemnity or guaranty business. A careful consideration of the record fails to disclose anything to indicate that the petitioner expected to realize any profit from his guaranteeing Shank & Co. against loss. It could not be said to have been a transaction entered into for profit. From the record we think the petitioner was interested in having a fireproof hospital built and was willing to do what was necessary to have it done. This being true, it is *27our opinion that the $17,347.15 paid by the petitioner in 1922 in accordance with his guaranty agreement constituted nothing more than an additional contribution toward having the hospital built. We think the respondent erred in allowing the amount as a deduction as representing a loss. Reviewed by the Board. Judgment will be entered under Rule 50.

2020-12-03 18:17:03.693609+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A24023-20m - 104623345121222061.pdf

J-A24023-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: C.D.M., A : IN THE SUPERIOR COURT OF MINOR CHILD : PENNSYLVANIA : : APPEAL OF: R.A.L.G. : : : : : No. 356 WDA 2020 Appeal from the Order Entered January 31, 2020 In the Court of Common Pleas of Elk County Orphans' Court at No(s): O.C. 4 of 2018 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 03, 2020 R.A.L.G. (“Mother”) appeals from the order terminating her parental rights to her minor child, C.D.M. (“Child”). Mother’s attorney has filed an Anders1 brief and motion to withdraw; Mother has not submitted a response. We grant counsel’s request and affirm the termination order. Elk County Children and Youth Services (“CYS”) filed a petition on January 25, 2018, seeking involuntary termination of Mother’s parental rights to Child. CYS alleged grounds for termination under 23 Pa.C.S.A. §§ 2511(a)(1), (a)(2), (a)(5), and (a)(8). The court held a hearing on the petition in April 2019. Prior to the start of the involuntary termination hearing, Mother expressed willingness to execute a consent to adoption. See 23 Pa.C.S.A. § ____________________________________________ 1 Anders v. California, 386 U.S. 738 (1967). J-A24023-20 2504. However, the parties agreed to proceed with the hearing, so long as the court held any decision on involuntary termination in abeyance for 30 days, the period in which a parent may withdraw a consent to adoption. See N.T., 4/10/19, at 7-8; see also 23 Pa.C.S.A. § 2711(d). The court agreed to do so. N.T. at 8, 15-16, 27. The parties stipulated that CYS had served Mother with the petition and that she had received proper notice of the hearing. Id. at 5-6. They also stipulated to the qualifications of Dr. Allen H. Ryen as an expert in child psychology, as well as to the admission of Dr. Ryen’s March 2017 and February 2018 bonding assessment reports and of the transcript of his testimony from an April 2018 goal change hearing. See id. at 5. Dr. Ryen’s reports and testimony were to the effect that Child was bonding to foster parents and his bond with Mother was “weak and insecure” and not “positive or nurturing,” and Dr. Ryen “argued strongly for termination of parental rights.” Findings of Fact and Conclusions of Law, filed 1/31/20, at 9 (unpaginated), ¶¶ 16-18. The court also took judicial notice of documents filed in the corresponding dependency case, and it heard the testimony of a CYS caseworker and one foster parent. After CYS finished presenting evidence supporting the involuntary termination of Mother’s parental rights, the court colloquied Mother about her consent to adoption. Mother stated she understood her consent would waive her rights to require CYS to prove its termination petition by clear and convincing evidence, cross-examine witnesses against her, and present her -2- J-A24023-20 own evidence. N.T. at 20-21. The court asked if she had anything to add. Mother stated that she was consenting to adoption because it was best for Child, and so that an involuntary termination of her parental rights to Child would not count against her in future dependency proceedings for another child. Id. at 22; see also 42 Pa.C.S.A. § 6302 (defining “Aggravated circumstances” for purposes of Juvenile Act as including involuntary termination of parental rights). At the conclusion of the hearing, Mother executed a consent to adoption. CYS then sought confirmation of the consent to adoption, and on June 7, 2019, Mother filed a Revocation of Consent to Termination of Parental Rights, alleging duress.2 CYS then asked the court to rule on the termination petition, and in January 2020, the court granted the petition and involuntarily terminated Mother’s parental rights to Child. This timely appeal followed. As noted above, Mother’s counsel has filed an Anders brief and motion to withdraw, and we must address the facial sufficiency of both filings before turning to the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287 , 290 (Pa.Super. 2007) (en banc). In an Anders brief, counsel must (1) ____________________________________________ 2 See 23 Pa.C.S.A. § 2711(c)(3)(i)(A) (“Notwithstanding paragraph (1), . . . [a]n individual who executed a consent to an adoption may challenge the validity of the consent only by filing a petition alleging fraud or duress within the earlier of the following time frames: (A) Sixty days after the birth of the child or the execution of the consent, whichever occurs later[;] (B) Thirty days after the entry of the adoption decree”). But see 23 Pa.C.S.A. § 2711(c)(1)(ii) (“For a consent to an adoption executed by a birth mother, the consent is irrevocable more than 30 days after the execution of the consent”). -3- J-A24023-20 summarize the procedural history and facts of the case, with citations to the record; (2) refer to anything in the record that arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; (4) set forth counsel’s reasons for so concluding. Commonwealth v. Santiago, 978 A.2d 349 , 361 (Pa. 2009). Counsel’s request to withdraw must also state that counsel has examined the record and determined the appeal would be frivolous. Commonwealth v. Cartrette, 83 A.3d 1030 , 1032 (Pa.Super. 2013) (en banc). Counsel must furnish a copy of the Anders brief to the appellant, and advise the appellant that he or she has the right to retain other counsel or proceed pro se. Id. Counsel has met the foregoing requirements. We will therefore conduct our own review of the record to determine whether the appeal is wholly frivolous before passing on counsel’s request to withdraw. Santiago, 978 A.2d at 355 n.5. In the Anders brief, counsel identifies the following issues: 1. Whether the [t]rial [c]ourt erred as a matter of law or committed an abuse of discretion when it terminated [M]other’s parental rights without having conducted a complete hearing on the matter? 2. Whether the [t]rial [c]ourt erred as a matter of law or committed an abuse of discretion when it terminated mother’s parental rights . . . when termination is not supported by the evidence? Anders Br. at 6. -4- J-A24023-20 When reviewing the involuntary termination of parental rights, we accept the factual findings and credibility determinations of the trial court so long as the record supports them. In re T.S.M., 71 A.3d 251 , 267 (Pa. 2013). We review the trial court’s termination decision for an error of law or abuse of discretion. In re Adoption of K.C., 199 A.3d 470 , 473 (Pa.Super. 2018). We will not reverse without a “demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of S.P., 47 A.3d 817 , 826 (Pa. 2012). I. Due Process Counsel first raises whether Mother received due process at the involuntary termination hearing. He states that the CYS caseworker did not testify that she believed it was in Child’s best interest to terminate involuntarily Mother’s parental rights. Counsel also questions whether Mother “fully appreciate[d]” that the hearing was proceeding based on stipulations, because, at the time, Mother was intending to consent to Child’s adoption. Anders Br. at 16. Due process requires adequate notice, an opportunity to be heard, and the chance to defend oneself in an impartial tribunal having jurisdiction over the matter. In re J.N.F., 887 A.2d 775 , 781 (Pa.Super. 2005). It also puts the burden on the party seeking termination of parental rights to prove by clear and convincing evidence that the parent can no longer perform parental duties and thus are not entitled to parental rights. See In re D.C.D., 105 A.3d 662 , 676-77 (Pa. 2014); In re A.M.B., 812 A.2d 659 , 670 (Pa.Super. 2002). -5- J-A24023-20 In addition, the Adoption Act incorporates the clear-and-convincing evidence standard and “the statutory construct requires specific determinations by the trial court regarding the proper placement and permanency goals of the children at each step of the process.” In re D.C.D., 105 A.3d at 676.3 If the clear-and-convincing evidence standard is met, a court may proceed with involuntary termination in the face of a parent’s stated intent to consent to adoption or voluntarily relinquish their parental rights. In re A.M.B., 812 A.2d at 670-73, 675 . Our review of the record reveals no basis on which to argue that Mother did not receive the protections due to her. Furthermore, regardless of the caseworker’s testimony, the parties stipulated to the admission of Dr. Ryen’s prior testimony and bonding assessment reports. We agree with counsel that this issue is frivolous. II. Sufficiency of Evidence Counsel next raises the sufficiency of the evidence. Counsel states the trial court should not have considered evidence post-dating January 25, 2018, the date CYS filed the petition. Counsel also questions whether the court properly considered evidence post-dating the termination petition, as CYS’s petition did not specifically reference the January 25, 2018 permanency review ____________________________________________ 3 See also A.M.B. at 670 (reviewing due process protections afforded to parents preceding involuntary termination hearing, including “extensive legal and social work, child welfare and court resources and time . . . [, f]iling of dependency petitions, hearings in juvenile court, adjudication of the adoptees as dependent children, . . . dispositional hearings, permanency hearings, [and] involuntary termination petitions”) (footnotes omitted). -6- J-A24023-20 order. Counsel also raises whether the trial court erred in relying on the findings of prior judges in the case. We find this issue to be frivolous as well. By way of background, the Adoption Act provides that a court “must engage in a bifurcated process prior to terminating parental rights.” In re L.M., 923 A.2d 505 , 511 (Pa.Super. 2007). First, the court must focus on the conduct of the parent and determine whether there is “clear and clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a).” Id. Clear and convincing evidence is evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re Adoption of K.C., 199 A.3d at 473 (citation omitted). A reviewing court need only affirm the trial court’s decision as to any one subsection of Section 2511(a). In re B.L.W., 843 A.2d 380 , 384 (Pa.Super. 2004) (en banc). The trial court must then shift its focus to the child, and determine “the needs and welfare of the child under the standard of best interests of the child.” In re L.M., 923 A.2d at 511 (citing Section 2511(b)). “One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.” Id. The court must consider whether severing the bond “would destroy an existing, necessary and beneficial relationship.” In re N.A.M., 33 A.3d 95 , 103 (Pa.Super. 2011) (citation omitted). The court must also consider any bond -7- J-A24023-20 between the child and pre-adoptive foster parents. In re T.S.M., 71 A.3d at 268. When entertaining a termination petition “pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b). Here, CYS alleged grounds for termination under 23 Pa.C.S.A. §§ 2511(a)(1), (a)(2), (a)(5), and (a)(8).4 The court found CYS presented clear ____________________________________________ 4 Those subsections provide: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. *** (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child. -8- J-A24023-20 and convincing evidence of grounds for termination under each of those subsections. See Findings of Fact and Conclusions of Law at ¶¶ 35-38. However, the termination order only expounded upon the basis for termination under 2511(a)(8). Id. at ¶¶ 44-47. Under that subsection, CYS was required to show that 12 months have passed since Child was removed from Mother; “the conditions which led to the removal . . . continue to exist”; and “termination of parental rights would best serve the needs and welfare of the child.” 23 Pa.C.S.A. § 2511(a)(8). The court first found that more than 12 months had elapsed since Child’s removal. Findings of Fact and Conclusions of Law at ¶ 46. Next, the court found that the conditions that led to Child’s removal continued to exist. The court found, “Mother has not made any continual or constant progress; to the contrary, [M]other has stagnated throughout all prior review periods at a minimal progress level. This has led to a failure on Mother’s part to alleviate the circumstances which led to the Child’s placement[.]” Id. at ¶ 23. The court also stated, “Although [M]other complied with some aspects of her family ____________________________________________ *** (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). -9- J-A24023-20 service plan, evidence established that the conditions that led to the [C]hild’s removal, including lack of parenting skills and sporadic compliance with her mental health issues, had not been corrected when the termination petition was filed[.]” Id. at ¶ 47. Finally, the court found that termination would best advance “[t]he developmental, physical, and emotional needs and welfare of the Child.” Id. at ¶ 28, 39. The court reviewed Dr. Ryen’s bonding assessments and testimony, and observed that Dr. Ryen had concluded Mother’s interactions with Child reflected a “decaying relationship which was unhealthy to begin with.” Id. at ¶ 17. The court similarly found that terminating Mother’s parental rights to Child would be in Child’s best interests under subsection 2511(b). Id. at ¶ 29, 40. The court found “there is no evidence that a secure or primary bond exists between the Child and [Mother],” but that Child “has a secure bond with the foster parents, which . . . should, in the Child’s best interest, not be severed.” Id. at ¶ 42. The record provides no reasonable basis on which to challenge the court’s conclusion that there was clear and convincing evidence to support termination under subsections 2511(a)(8) and (b). A claim that the court improperly considered evidence post-dating the filing of the petition lacks foundation. As discussed above, that limitation only bars the court from considering remedial efforts a parent makes after the filing of the petition. Here, as the trial court noted, subsection 2511(a)(8) only requires the court to determine whether the conditions which led to Child’s removal continue to - 10 - J-A24023-20 exist. It does not entail any analysis of the parent’s efforts in alleviating those conditions, and does not bar consideration of evidence accruing after the filing of the petition when determining whether the conditions persist. Even if the statute did contain such a bar, the court here specified that Mother’s mental health issues “had not been corrected when the termination petition was filed[.]” Id. at ¶¶ 44-45, 47 (emphasis added). Nor is there any reasonable basis on which to argue that the court erred in considering the dependency orders. The court’s taking of judicial notice was proper and Mother did not object to its doing so at the termination hearing. Furthermore, the court’s decision was supported by Dr. Ryen’s bonding assessments and testimony, and the testimony of the caseworker and foster parent at the termination hearing. Having found the issues counsel flagged wholly frivolous, and having discovered no non-frivolous issues, we grant counsel leave to withdraw and affirm the order of the trial court. Order affirmed. Application to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2020 - 11 -

2020-12-03 18:17:04.171069+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A24025-20m - 104623306121219654.pdf

J-A24025-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF M.C.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: V.H., MOTHER : : : : : : No. 371 WDA 2020 Appeal from the Order Entered February 5, 2020 In the Court of Common Pleas of McKean County Orphans' Court at No(s): 42-18-0254 IN THE INTEREST OF: S.S. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: V.H., MOTHER : : : : : : No. 372 WDA 2020 Appeal from the Order Dated February 5, 2020 In the Court of Common Pleas of McKean County Orphans' Court at No(s): No. 42-18-0255 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 03, 2020 V.H. (“Mother”) appeals the order terminating her parental rights to M.S. and S.S. (collectively, “Children”). Mother argues the trial court erred in finding the evidence supported the involuntary termination of her rights. We affirm. In December 2016, the trial court granted McKean County Children and Youth Services (“CYS”) emergency custody of M.S., born December 2014. S.S. J-A24025-20 was born in February 2018, and the court granted CYS’s request for emergency custody the following month, in March 2018. In October 2018, CYS filed a petition for involuntary termination of Mother’s parental rights as to both Children. Mother and S.S. (“Father”)1 were in a volatile and abusive relationship. Police responded to the home of Mother and Father on numerous occasions for domestic disputes. N.T., 10/25/19, at 43. One such incident occurred in February 2017, when Mother went to the emergency room for a head injury, and informed the emergency room nurse that Father had hit her with a closed fist. Mother continued to be in a relationship with Father until at least May 2018, and there continued to be episodes of physical violence, including an incident in March 2018 that resulted in criminal charges being filed against both Mother and Father. Id. at 36-43; N.T., 7/26/19, at155. Sometime after May 2018, Mother began a relationship with another individual. N.T., 1/17/20, at 21. At the time of the hearing on the petition to terminate, Mother resided with this individual and was expecting a child with him. Id. at 26-27. Neither Mother nor her boyfriend testified at the hearing, and the record contains little evidence regarding the boyfriend or the relationship. ____________________________________________ 1 CYS filed a petition to terminate Father’s parental rights, which the court granted. Father appealed, and we address his appeals at dockets 365 WDA 2020 and 366 WDA 2020. -2- J-A24025-20 Mother has not been consistent with visits with Children. She has at times regularly visited them, but, during other periods, her attendance at visits has been sporadic. See, e.g. N.T., 7/26/19, at 157-58; N.T., 10/25/19, at 69-70. Further, Mother has difficulty interacting with Children during visits. N.T., 10/25/19, at 78. When service providers are in the home, Mother follows their directives. Id. However, Mother has difficulty following through and implementing the skills taught by the providers when the providers are not there. A CYS case worker, Shaina Burgett, testified that she supervised 25 visits with Mother, and Mother canceled 14 other visits. N.T., 11/8/19, at 9. She testified that Mother was occupied on her phone during much of the visits. Id. at 10. She was “more hands on . . . when . . . the Nurse Educator . . . or Parents as Teachers were there and . . . once visits were moved to the office.” Id. Testimony from numerous case workers established that Mother had difficulty with Children, and that Children were upset prior to the visits, and did not want to attend. See id. at 15 (M.S. would yell and cry when the case worker arrived to take him to visits); id. at 56 (Children would cry and not want to get into the car to go to visits); N.T., 1/17/20, at 40 (M.S. would hide and say he did not want to go to visits). M.H. (“Foster Mother”) testified regarding S.S.’s health issues. S.S. has had pneumonia five times, and was twice life-flighted to the Children’s Hospital of Pittsburgh, in December 2018 and June 2019. N.T., 1/17/20, at 193. In December 2018, Foster Mother texted Mother about S.S.’s condition. Id. -3- J-A24025-20 Mother did not arrive at the hospital until the following afternoon. Id. at 196. Although Mother remained at the hospital for the weekend, she spent most of her time on her cell phone. Id. at 197. Foster Mother also notified Mother of the June 2019 hospital stay, but Mother did not visit. Id. at 201. Foster Mother further testified that she, not Mother, rode the helicopter with S.S., and that she stepped in when medical providers were unable to place an I.V. in S.S.’s arm, insisting they wait for the helicopter, when more experienced professionals could assist. Id. at 249. Mother’s goals included obtaining mental health treatment. A therapist at The Guidance Center, Lennis Watkins, provided Mother with outpatient therapy, starting in January 2018. N.T., 7/26/19, at 9. He recommended Mother attend twice per week, but, over a 14-month period, she attended only 12 appointments. Id. at 9-10. Mother was discharged June 2019 due to non- attendance. Id. at 12. An expert in clinical psychology and in bonding assessments, Dr. Peter von Korff, testified that M.S. does not accept Mother as a parental figure, and that his relationship with Mother is “insecure.” Id. at 52. He testified that Mother expresses an interest in having a relationship with Children and providing care, but “is ineffective in following through.” Id. at 50. M.S. struggles with visits with Mother, and M.S. was “very reluctant” and “slow and hesitant” to approach Mother. Id. at 48. Dr. von Korff testified that S.S. was not comfortable with Mother, and was eager to return to Foster Mother and D.H. (“Foster Father”) (collectively “Foster Parents”). Id. at 56. -4- J-A24025-20 Dr. von Korff testified that, although it may be possible for Mother to form a “primary bond” with Children, he questioned whether that bond would be secure. Id. at 77. Dr. von Korff testified that it would be to Children’s advantage to remain with Foster Parents, and Children would not suffer significant emotional harm if the court terminated Mother’s rights. Id. at 71. He testified that although M.S. has a “tentative relationship with both [Parents], that his secure functioning is with the [Foster Parents], and that if severance takes place, that he will be able to rely on that secure functioning.” Id. at 79. The trial court terminated Mother’s rights to Children, finding termination proper under Subsections 2511(a)(1), (2), (5), and (8), and Section 2511(b) of the Adoption Act. Mother filed a timely notice of appeal. Mother raises the following issue: “Whether the trial court erred in finding that the evidence admitted at trial was sufficient to support an involuntary termination of parental rights?” Mother’s Br. at 4. When we review termination of parental rights cases, we “accept the findings of fact and credibility determinations of the trial court if they are supported by the record.” In re T.S.M., 71 A.3d 251 , 267 (Pa. 2013) (citation omitted). “If the factual findings have support in the record, we then determine if the trial court committed an error of law or abuse of discretion.” In re Adoption of K.C., 199 A.3d 470 , 473 (Pa.Super. 2018). We may reverse a trial court decision “for an abuse of discretion only upon -5- J-A24025-20 demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will.” In re Adoption of S.P., 47 A.3d 817 , 826 (Pa. 2012). A party seeking to terminate parental rights has the burden of establishing grounds for termination by clear and convincing evidence. See In re Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means evidence “that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” Id. (citation omitted). Termination of parental rights is controlled by Section 2511 of the Adoption Act. See In re L.M., 923 A.2d 505 , 511 (Pa.Super. 2007). Under Section 2511, the trial court must engage in a bifurcated analysis prior to terminating parental rights: Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. Id. (citations omitted). To affirm, “we need only agree with [the trial court’s] decision as to any one subsection” of 2511(a), as well as its decision as to Section 2511(b). In re B.L.W., 843 A.2d 380 , 384 (Pa.Super. 2004) (en banc). -6- J-A24025-20 Here, the trial court terminated Mother’s parental rights pursuant to multiple subsections of Section 2511(a), including subsection (a)(1). That subsection provides: (a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. 23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to subsection (a)(1) . . . , the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b). Subsection 2511(a)(1) requires the moving party to prove by clear and convincing evidence that the subject parent engaged in “conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties.” In re Z.S.W., 946 A.2d 726 , 730 (Pa.Super. 2008). The parental obligation is a “positive duty which requires affirmative performance” and “cannot be met by a merely passive interest in the development of the child.” In re C.M.S., 832 A.2d 457 , 462 (Pa.Super. 2003) (quoting In re Burns, 379 A.2d 535 , 540 (Pa. 1977)). Indeed, [p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship -7- J-A24025-20 to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her physical and emotional needs. In re B., N.M., 856 A.2d 847 , 855 (Pa.Super. 2004) (citations omitted). The trial court concluded CYS presented clear and convincing evidence of grounds for termination of parental rights under Section 2511(a)(1): Parents are required to act affirmatively with good faith interest and effort to perform parental duties. Mother [has] not done that. . . . Services have been provided for Mother and she has cooperated with providers. However, she has failed to retain and utilize proper parenting skills once the service providers are gone. Mother is easily distracted from parenting by her own life concerns and interests. She has missed many visits and had a problem focusing on her phone and not the children during visits. After she was ordered by the court to not use her cellphone during visits, Mother has had more interaction with the children during the visits. However, Mother still struggles with ascertaining the children’s needs and interacting with them. She has great difficulty controlling behavior. After years of services and visits Mother still is not in a position to provide appropriate care for the children. After the termination petition was filed Mother’s life became more stable. She is residing with her current paramour at his residence. His home appears appropriate and he appears to motivate Mother to have visits and contact with the children. However, these recent developments occurred after the termination petition was filled. Therefore, their legal significance is limited. In addition, Mother and her paramour did not testify at the termination hearings. Therefore, there is limited evidence in the record to support the assertion that Mother’s current relationship with her -8- J-A24025-20 paramour is stable; and, that it would be beneficial for the children to have extended contact with Mother’s paramour. Very little is known about Mother’s paramour. What is known is that Mother has a very strained relationship with the children. M.S. does not benefit from visits with his Mother. He is greatly emotionally troubled by them. He agonizes and dreads the visits. He has gone so far as to insist that [Foster Parents] are his birth parents, insisting that they brought him home from the hospital. He recognizes the stability that he has with [Foster Parents] and the instability he has had regarding Parents. He desperately does not want to lose that stability. S.S. has no connection to Parents as she has had limited contact with them; and, [Foster Parents] have provided care and support for her since she was born. There are numerous examples of the care and support [Foster Parents] have provided for both children in this record (and Parents’ unavailability). One in particular demonstrates both the commitment [Foster Parents] have to the children and the children’s recognition of [Foster Parents] as their parental figures. [Foster Mother] described S.S’s first life flight[] to Pittsburgh. S.S. was in desperate need of an IV. It was required before she take the flight and needed as she was dehydrated. Parents were not at the hospital and S.S. was in [Foster Mother’s] arms. The medical staff attempted, again and again, to stick a needle in her and find one of her tiny veins. S.S. would scream and squirm each time an attempt was made. [Foster Mother], looking out for S.S., said: “enough,” telling the medical staff that the team on the helicopter had more experience inserting an IV in a young child and they needed to wait until they arrived. [Foster Mother] was the one there when the flight team arrived, when they grabbed S.S. and held her down while they inserted a needle in her to give her the IV. [Foster Mother] was the one that heard the bab[y]’s terrified screams and she was the one that comforted S.S. afterwards. Regarding the statutory grounds for termination the court finds that CYS has established, by clear and convincing evidence, the following: For over twelve months . . . Mother . . . ha[s] been unable to provide safe and appropriate care for S.S. and ha[s] failed to make reasonable efforts towards -9- J-A24025-20 reunification. By [her] actions and [her] inaction [she has] demonstrated a settled purpose to relinquish and/or refuse to perform their parental duties. In addition, the cause of the Parents’ inability to take any meaningful action is unlikely, even with the assistance of reasonable services or assistance, to be remedied in the future. Trial Court Opinion (“1925(a) Op.”), filed Feb. 5, 2020, at 12-14. The court did not err as a matter of law or abuse its discretion. Mother’s conduct prior to the filing of the termination petition, and sustained for at least six months before the filing, revealed a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. Mother did not consistently visit with Children, continued to have a relationship with Father, and did not follow through with her mental health treatment or other permanency goals. We next must determine whether termination was proper under Section 2511(b). Under Section 2511(b), the court must consider “the developmental, physical and emotional needs and welfare of the child” to determine if termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A. § 2511(b). The focus under Section 2511(b) is not on the parent, but on the child. In re Adoption of R.J.S., 901 A.2d 502 , 514 (Pa.Super. 2006). This analysis involves “[i]ntangibles such as love, comfort, security, and stability. . . .” In re C.M.S., 884 A.2d 1284 , 1287 (Pa.Super. 2005). The trial court “must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond.” Id. Importantly, “[t]he mere existence of an emotional bond does not preclude the termination of parental rights.” In re N.A.M., 33 A.3d 95 , 103 (Pa.Super. - 10 - J-A24025-20 2011). Rather, the trial court “must examine the status of the bond to determine whether its termination would destroy an existing, necessary and beneficial relationship.” Id. (internal quotation marks and citation omitted). Further, “[c]ommon sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents.” In re T.S.M., 71 A.3d at 268. The trial court concluded termination would best meet S.S. and M.S.’s developmental, physical, and emotional needs and welfare. The court found that both S.S. and M.S. know Foster Parents are there for them, good or bad, and M.S. had a negative bond with Mother, while S.S. had no bond with her: M.S. has a negative bond with Parents. He has already, despite what the court or others may say, concluded that [Foster Parents] are his parental figures and providers. It would be beneficial to M.S. to sever the negative bond he has with Parents and provide him with assurance that the stability he has experienced with [Foster Parents] will be permanent. It would be extremely traumatic to M.S. and S.S. to expand visits with Parents or place them in their care. S.S. has a strong bond with [Foster Parents] and no bond with Parents. Therefore, it best fulfills her needs and welfare to terminate parental rights and allow [Foster Parents] to adopt [S.S.] and M.S. 1925(a) Op. at 14. The trial court did not err or abuse its discretion in finding termination would best meet Children’s physical, social, and emotionally needs and welfare. The testimony at the hearing, including from Dr. von Korff, was that S.S. did not have a bond with Mother and M.S. had a negative bond. However, - 11 - J-A24025-20 Children had a positive bond with Foster Parents, to whom they look for love and support. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2020 - 12 -

2020-12-03 18:17:04.396132+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A26021-20m - 104623856121253439.pdf

J-A26021-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARNELL LONG : : Appellant : No. 757 EDA 2019 Appeal from the Judgment of Sentence Entered February 1, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000631-2018, CP-51-CR-0000632-2018 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARNELL LONG : : Appellant : No. 758 EDA 2019 Appeal from the Judgment of Sentence Entered February 1, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000631-2018, CP-51-CR-0000632-2018 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.* MEMORANDUM BY LAZARUS, J.: Filed: December 3, 2020 ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A26021-20 Darnell Long appeals1 from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after a jury convicted him of ____________________________________________ 1 Long was convicted at two separate docket numbers and filed two separate notices of appeal, each listing both docket numbers. On October 28, 2019, our Court issued rules to show cause why Long’s appeals “should not be quashed in light of [Commonwealth v. ]Walker[, 185 A.3d 969 (Pa. 2018)].” Per Curiam Order, 4/29/19. See Walker, supra at 977 (requiring filing of “separate appeals from an order that resolves issues arising on more than one docket.”). On October 31, 2019, counsel filed responses to the rules to show cause, stating: [a]lthough each notice reflects the related information consolidated in the lower court for a single jury trial, the actual notices are separate, and separate EDA numbers have been assigned. . . . Here, where separate appeals have been filed arising from a single trial and final sentence, the quashal of those appeals cannot rationally be related to the decision of the High Court in Walker. Response to Order to Show Cause, 10/31/19, at ¶¶ 9-10. On November 4, 2019, our Court referred the Walker issue to the panel assigned to decide the merits of the appeal. Per Curiam Order, 11/4/19. In Walker, our Supreme Court found that Pa.R.A.P. 341 and its Official Comment, which states that “[w]here . . . one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed,” constituted “a bright-line mandatory instruction to practitioners to file separate notices of appeal.” Walker, 185 A.3d at 976-77. The failure to do so requires the appellate court to quash the appeal. Id. at 977. Recently, our full Court revisited Walker in Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc). There, our Court concluded that “in so far as [Commonwealth v. ]Creese[ 216 A.3d 1142 (Pa. Super. 2019)], stated ‘a notice of appeal may contain only one docket number[,]’ . . . that pronouncement is overruled.” See Johnson, supra at 1148 (emphasis in original). On November 18, 2020, the Pennsylvania Supreme Court denied Johnson’s petitions for allowance of appeal in Nos. 269, 270, 271 & 272 EAL -2- J-A26021-20 possessing instruments of crime (“PIC”)2 and the trial court, sitting without a jury in a stipulated trial, convicted him of possessing a firearm prohibited.3 Upon careful review, we affirm. The trial court set forth the factual history of this matter as follows: On November 5, 2017, Philadelphia Police Officer Robert Haberle was on duty when he received a radio call directing him to go to 436 West Wyoming Avenue in Philadelphia to investigate reports of a shooting inside the [] residence committed by a black male with a beard that had gray or white in it. [Officer Haberle] immediately traveled to that location and[,] when he entered the residence, the front door of which was open, he went to the second floor and encountered [] Lynnelle Gaffney, who was standing at the door of [the] second floor bedroom where she slept. The officer went to the second floor and observed that [] Gaffney had been shot and that a second person named Stefvon Wilburn was sitting on the floor of the bedroom suffering from [a] gunshot wound to his leg. The officer asked what happened and [] Gaffney told him that she and Wi[l]burn were using drugs when she heard a gunshot. She added that Darnell Long shot Wilburn and then fired twice at her and that a bullet hit her in the chest. Both shooting victims were transported to Albert Einstein Hospital by rescue personnel and treated for their wounds. Gaffney suffered gunshots to her left chest and [Wilburn suffered] wounds to his legs. While in the care of rescue personnel, Gaffney stated that [Long] shot her. Also present at the residence was a woman named Penelope Cabezas, who owned the residence and lived in it, and was in a ____________________________________________ 2020. See Order, 11/18/20 at 2. Accordingly, pursuant to Johnson, Long is in compliance with the dictates of Walker and we may consider the merits of his appeal. 2 18 Pa.C.S.A. § 907. 3 18 Pa.C.S.A. § 6105(a)(1) (F1). -3- J-A26021-20 back bedroom when the shooting happened. Officer Haberle transported [] Cabezas to a nearby police station. On the day the incident occurred, [] Gaffney, her boyfriend, [] Wilburn, and [Long] were watching television and playing cards while drinking alcohol and smoking marijuana, activities they had been engaging in for about two days. At some point, Wilburn left to buy beer and marijuana and[,] when he returned[,] Gaffney began searching for something in her bed that she used to roll up marijuana while sitting with Wilburn and [Long] in her bedroom. While doing so, she heard something that drew her attention to [Long,] who was holding a gun wrapped in a hooded sweatshirt. She immediately asked him what [he was] doing and[,] as she stood up, she heard a [gunshot] and then [heard] Wilburn say “Ah” and then begin screaming as if he had been shot. Gaffney turned toward [Long,] who began walking toward her. As [Long] did so[,] he fired three or four shots at Gaffney, one of which struck her in the ribs on her left side[. Gaffney] repeatedly asked [Long] what he was doing. [Long], who said nothing before or after shooting Gaffney and Wilburn, then walked out of the bedroom. After [Long] left, Gaffney used a blanket to [stanch] the flow of blood and took a phone from Wilburn[,] who was calling the police. Gaffney then ran downstairs and out of the back door of the residence before going around to the front door[,] where she was tended to by Paris Berry, a next[-]door neighbor. According to Gaffney, she, Wilburn[,] and [Long] were long[-]time friends and nothing occurred that night to prompt [Long] to shoot her and Wilburn. She added that she did not have a weapon and did not know Wilburn to carry a firearm. Gaffney received treatment for her injuries at Einstein Hospital. She did not have to undergo surgery and was released [approximately] twelve hours [] after arriving at the hospital. Penelope Cabezas was sleeping in a bedroom near Gaffney’s room when the shootings occurred. She [was] awakened by the sound of Wilburn yelling her name and went into the hallway[,] where she saw Wilburn lying on the floor[,] appearing as if “someone twisted him and threw him on the floor.” She thereafter encountered Gaffney, who also had been shot[;] neighbors and the police arrived soon thereafter. Cabezas, who had seen [Long] before the shooting, did not hear the shots or see [Long] after the shooting occurred. -4- J-A26021-20 Philadelphia Police Officer Richard Green also went to the scene following the shooting. According to Officer Green, both Gaffney and Wilburn identified [Long] as the person who shot both of them when asked [by medical personnel] to name the shooter[,] but once they arrived at the hospital, they said that they could not identify the shooter. Police examined the bedroom where the shooting occurred and recovered a bullet from inside a wall[, as well as] other evidence. They also observed a small amount of blood on the floor and a bullet hole in a wall. Based on the evidence collected by police and the information received from Gaffney and Wilburn, police secured a [] warrant for [Long’s] arrest. Police arrested [Long] pursuant to the warrant on November 16, 2017. Trial Court Opinion, 9/6/19, at 2-4 (citations to record omitted). On September 25, 2018, Long was convicted of the above offenses. The jury acquitted him of three counts of aggravated assault.4 On February 1, 2019, the trial court sentenced Long to 10 to 20 years’ incarceration for possessing a firearm prohibited.5 No further penalty was imposed for PIC. Long filed post-sentence motions, which were denied on February 13, 2019. This timely appeal follows. Both Long and the trial court have complied with Pa.R.A.P. 1925. Long raises one issue for our review: “In imposing the statutory maximum sentence, did not the trial court err and abuse its discretion by ____________________________________________ 4 18 Pa.C.S.A. § 2702. 5 Long had a prior record score of 5 and an offense gravity score of 10, resulting in a standard guideline sentence of 5 to 6 years’ incarceration, +/- 12. Thus, Long’s sentence of 10 to 20 fell three years beyond the top of the aggravated range of the sentencing guidelines and constituted a statutory maximum sentence. See 18 Pa.C.S.A. § 1103 (fixing sentencing term for felony of first degree at not more than 20 years). -5- J-A26021-20 considering an impermissible sentencing factor, namely, crimes for which [Long] was acquitted by a jury?” Brief of Appellant, at 4. Long’s claim raises a challenge to the discretionary aspects of his sentence. Such a claim does not entitle an appellant to review as a matter of right. Commonwealth v. Swope, 123 A.3d 333 , 337 (Pa. Super. 2015). Rather, before this Court can address such a discretionary challenge, an appellant must invoke this Court’s jurisdiction by: (1) filing a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) including in his brief a concise statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Id. Here, Long filed a post-sentence motion for reconsideration of sentence, followed by a timely notice of appeal to this Court. He has also included in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Rule 2119(f). Accordingly, we must now determine whether Long has raised a substantial question that his sentence is not appropriate under the Sentencing Code. In his Rule 2119(f) statement, Long asserts that the trial court imposed “an unreasonable and manifestly excessive sentence” that was “well beyond the aggravated range of the [S]entencing [G]uidelines” and was based, “in whole or in part, . . . on an impermissible factor, namely, conduct for which -6- J-A26021-20 the jury had acquitted [] Long.” Brief of Appellant, at 11-12. This Court has repeatedly held that a claim that a sentence is excessive because the trial court relied on impermissible factors raises a substantial question. Commonwealth v. Bryant, 237 A.3d 470 (Pa. Super. 2020) (claim that trial court imposed excessive sentence and considered impermissible factor in doing so raises substantial question); Commonwealth v. Allen, 24 A.3d 1058 , 1064-65 (Pa. Super. 2011) (“[A] claim that a sentence is excessive because the trial court relied on an impermissible factor raises a substantial question.”). Accordingly, we grant Long’s petition for allowance of appeal and address the merits of his claim. We begin by noting our standard of review in sentencing matters: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias[,] or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Raven, 97 A.3d 1244 , 1253 (Pa. Super. 2014). Deference is accorded to the trial court’s pronouncement of sentence because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Ward, 568 A.2d 1242 , 1243 (Pa. 1990). “When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity -7- J-A26021-20 of offense in relation to impact on victim and community, and rehabilitative needs of the defendant[.]” Commonwealth v. Fullin, 892 A.2d 843 , 847 (Pa. Super. 2006). Furthermore, “[a] trial court judge has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence[.]” Commonwealth v. Stewart, 867 A.2d 589 , 593 (Pa. Super. 2005) (citation omitted). The sentencing court must, however, consider the Sentencing Guidelines. See Fullin, 892 A.2d at 847 . Finally, where the court is in possession of a presentence report (“PSI”), we “presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Watson, 228 A.3d 928 , 936 (Pa. Super. 2020), quoting Commonwealth v. Devers, 546 A.2d 12 , 18 (Pa. 1988). Long argues that the trial court impermissibly considered the aggravated assault charges for which he was acquitted in fashioning its statutory-maximum sentence for his conviction for persons not to possess a firearm. In support of his claim, Long cites the following statement made by the judge at sentencing: In this particular case[,] this [c]ourt is well aware of the inconsistency of the [c]ourt’s jury verdict. But the [c]ourt is also aware of the fact that two people came in here with gunshot wounds testifying that you shot them; one in the chest and one in the leg. So under those circumstances, sir, having considered all the facts and circumstances in this case, on the charge of felony, first- -8- J-A26021-20 degree, [s]ection 6105, your sentence is 10 to 20 years in a state correctional institution. N.T. Sentencing, 2/1/19, at 13. Long asserts that his claim is controlled by this Court’s decision in Commonwealth v. Smart, 564 A.2d 512 (Pa. Super. 1989). In that case, Appellant participated in the burglary of a home used as a shelter for abused women. Two women testified that they were raped during the commission of the crime and that appellant participated in the rapes. The appellant, however, testified that he had been drinking when approached by two individuals to commit a burglary and/or robbery. According to his testimony[,] appellant led the individuals to the home but then indicated an unwillingness to participate further and left. At the conclusion of a jury trial, appellant was convicted of burglary but acquitted of the remaining charges. Id. at 513. Although the guideline sentences for burglary were 12 to 29 months in the standard range and 29 to 36 months in the aggravated range, appellant was sentenced to 8 to 20 years’ imprisonment, representing a minimum sentence of more than 2½ times the upper end of the aggravated range. The trial court imposed this sentence despite a recommendation in the PSI report of a sentence in the 2½ to 5 years range. The PSI also mentioned that it was the practice of the local court to impose a long county or short state prison sentence for such convictions of burglary. In holding that the trial court had abused its discretion in sentencing the appellant outside the aggravated range of the guidelines, this Court noted that the court had improperly relied upon juvenile conduct as an aggravating factor and failed to consider mitigating evidence, including the defendant’s -9- J-A26021-20 withdrawal from the criminal venture prior to the commission of the most egregious offenses, as well as his intoxication. The Court stated: Although these factors cannot be considered excuses for committing a crime[,] they could be considered factors depreciating the voluntariness of the enterprise or depicting a reconsideration of the criminal endeavor. In either case they would seem to be factors tending to mitigate the gravity of the offense. Id. at 514. The Court also observed that [t]he circumstances of the present case, in our opinion, invite a tremendous amount of suspicion that the trial court was simply disregarding the jury’s verdict of not guilty of the various charges other than burglary and imposing sentence as if appellant had been convicted of those charges. This is a situation which can erode the confidence in the jury trial system and violates the convicted individual’s fundamental right to be judged by a jury of his peers. Id. Long argues that, as in Smart, the trial court sentenced him more harshly because it took into consideration the aggravated assault charges of which the jury acquitted him. This Court has previously stated: A sentence is invalid if the record discloses that the sentencing court may have relied in whole or in part upon an impermissible consideration. This is so because the court violates the defendant’s right to due process if, in deciding upon the sentence, it considers unreliable information, or information affecting the court’s impartiality, or information that it is otherwise unfair to hold against the defendant. Simply put, the evidence upon which a sentencing court relies must be accurate, and there must be evidentiary proof of the factor[] upon which the court relied. - 10 - J-A26021-20 Commonwealth v. Downing, 990 A.2d 788 , 793 (Pa. Super. 2010) (quotations and citations omitted). Nevertheless, we have also held: “[a] judge may consider unadjudicated arrests in sentencing a defendant, so long as the arrests are not regarded as establishing criminal conduct, and even arrests that result in acquittals, if the judge is aware of the acquittal.” Commonwealth v. Bowers, 25 A.3d 349 , 356 (Pa. Super. 2011) (emphasis added); see also Commonwealth v. Craft, 450 A.2d 1021 , 1024 (Pa. Super. 1982) (“[A] court, in imposing sentence[,] may consider prior arrests and concurrent charges as long as the court realizes that the defendant had not been convicted on those prior charges[.]”). As this Court has repeatedly observed, “an acquittal cannot be interpreted as a specific finding in relation to some of the evidence presented; an acquittal may represent the jury’s exercise of its historic power of lenity[.]” Commonwealth v. Barger, 956 A.2d 458 , 461 (Pa. Super. 2008). “When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon [the] acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Commonwealth v. Swann, 635 A.2d 1103 , 1104 (Pa. Super. 1994). Here, the trial court was clearly aware that Long had been acquitted of the assault charges, having presided over his jury trial, and acknowledged that fact on the record. See N.T. Sentencing, 2/1/19, at 13 (“[T]his [c]ourt is well aware of the inconsistency of the [c]ourt’s jury verdict.”). Prior to imposing sentence, the court listened to argument from defense counsel and - 11 - J-A26021-20 was in possession of a PSI. Accordingly, we presume that the court was aware of and considered all relevant sentencing factors and considerations. Devers, supra. However, as the trial court also noted, Long had a significant criminal history, including “three juvenile arrests, including one for aggravated assault, adjudications, 31 adult arrests, seven violations, 15 convictions, six revocations, and 13 separate commitments[.]” N.T. Sentencing, 2/1/19, at 12-13. Considerations of a defendant’s extensive criminal history and failure to rehabilitate, and the concomitant need to protect society and deter future wrongdoing, have been held to be sufficient reasons to support deviations from the guidelines. Commonwealth v. Tirado, 870 A.2d 362 , 368 (Pa. Super. 2005) (affirming guidelines deviation based on defendant’s extensive criminal history, failure to rehabilitate, and need to protect society). See also Commonwealth v. Mouzon, 828 A.2d 1126 , 1129 (Pa. Super. 2003) (affirming deviation from guidelines where trial court fashioned sentence primarily based on “how [the] record bore on Mouzon’s prospects for rehabilitation, coupled with the court’s sense of duty to protect the public”). Moreover, we find Long’s reliance on Smart misplaced. There, unlike here, this Court concluded that the sentencing judge improperly relied upon a single incident of juvenile misconduct6 as an aggravating factor and also failed ____________________________________________ 6 Specifically, at 15 years of age or less, Smart knocked a five year old off of a bicycle and stole it. This Court concluded that, “[a]lthough such behavior is - 12 - J-A26021-20 to consider relevant mitigating factors in fashioning its sentence. Although, based on the totality of the facts before it, the Court found that the trial court’s sentence “create[d] a strong suggestion that appellant [wa]s being punished for crimes of which he was acquitted,” Smart, 564 A.2d at 514, the Court did not hold that a sentencing judge could not consider the totality of the circumstances of a case, including conduct for which the defendant was acquitted. In the matter sub judice, the sentencing court was within its discretion to acknowledge and consider the fact that, as a result of Long’s illegal possession of a firearm, two individuals were shot and injured, even though the jury, in its wisdom, chose not to convict him of aggravated assault. See Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (victim’s death resulting from gunshot could be considered in calculating offense gravity score, even though defendant was acquitted of murder). In sum, while Long’s sentence is undeniably substantial, we are unable to conclude that the trial court exercised its discretion in a manner that was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. Raven, supra. Judgment of sentence affirmed. ____________________________________________ not to be condoned and is most definitely anti-social, . . . imprisonment for such behavior could lead to the incarceration of many a neighborhood bully.” Smart, 564 A.2d at 514. - 13 - J-A26021-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/20 - 14 -

2020-12-03 18:17:04.583538+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S62032-19m - 104623258121215443.pdf

J. S62032/19 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : WILLIAM J. LEWIS, : No. 670 WDA 2019 : Appellant : Appeal from the PCRA Order Entered March 29, 2019, in the Court of Common Pleas of Warren County Criminal Division at Nos. CP-62-CR-0000066-2017, CP-62-CR-0000067-2017, CP-62-CR-0000068-2017, CP-62-CR-0000069-2017, CP-62-CR-0000070-2017 BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2020 William J. Lewis appeals from the March 29, 2019 order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm. The relevant facts and procedural history of this case, as gleaned from the PCRA court opinion, are as follows: This case arose following appellant’s confession to police on November 2, 2015, that [he] and his son had committed a series of robberies in Sugar Grove, Pennsylvania over the past several weeks. Appellant was subsequently charged with five (5) counts of burglary, five (5) counts of criminal conspiracy to commit burglary, five (5) counts of criminal trespass, five (5) counts of theft by unlawful taking, five (5) counts of receiving stolen property, along with J. S62032/19 three (3) counts of criminal mischief.[1] Following plea negotiations, appellant pled guilty to five (5) counts of criminal conspiracy and five (5) counts of theft by unlawful taking. The rest of the charges were nolle prossed. On October 6, 2017, [the trial] court sentenced appellant on each count to run consecutive for a total aggregate sentence of a minimum [of] 120 months to a maximum of 240 months, with credit for time served. Appellant’s motion for reconsideration of sentence was denied on November 3, 2017. On October 15, 2018, appellant filed his first [pro se] PCRA [petition] regarding docket number[s] 66, 67, and 68. Subsequently, [the PCRA] court appointed PCRA counsel on October 19, 2018, and permitted counsel to file an amended petition. On November 30, 2018, PCRA counsel filed a motion to extend time for filing an amended petition for PCRA, which the [PCRA] court granted. On January 28, 2019, PCRA counsel filed the amended petition for PCRA. PCRA court opinion, 5/24/19 at 1-2 (bolding and italics added; extraneous capitalization omitted). On March 29, 2019, the PCRA court denied appellant’s amended petition following an evidentiary hearing. On April 26, 2019, PCRA counsel2 filed separate, identical timely notices of appeal on appellant’s behalf at CP-62-CR- 0000066-2017, CP-62-CR-0000067-2017, CP-62-CR-0000068-2017, CP-62-CR-0000069-2017, and CP-62-CR-0000070-2017, listing all five docket numbers on each. On May 1, 2019, the PCRA court ordered appellant 1 18 Pa.C.S.A. §§ 3502(a), 903(a), 3503(a), 3921(a), 3925(a), and 3304(a), respectively. 2 Alan M. Conn, Esq. -2- J. S62032/19 to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant failed to comply. On May 24, 2019, the PCRA court filed its Rule 1925(a) opinion, noting that appellant had failed to comply with its Rule 1925(b) order but nonetheless electing to address the ineffectiveness claims raised in his amended PCRA petition. (See PCRA court opinion, 5/24/19 at 3-4.)3 On May 21, 2019, this court issued an order directing appellant to show cause why his appeal should not be quashed pursuant to our supreme court’s holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant filed a response, averring that Walker is not applicable because “the cases were heard by the same court and regards a plea that was entered on the same date.” (Appellant’s response to rule to show cause, 6/6/19.) This court discharged the rule to show cause, referring the issue to the merits panel. Thereafter, on January 28, 2020, the disposition of this case was stayed, pending the resolution of a number of en banc cases in this court concerning the proper application of Walker and Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019). Prior to consideration of the merits of this appeal, we must first address whether appellant’s notices of appeal complied with the requirements set forth in the Pennsylvania Rules of Appellate Procedure and Walker. In Walker, 3The record reflects that appellant ultimately filed a Rule 1925(b) statement on July 3, 2019, well past the 21-day deadline. -3- J. S62032/19 our supreme court provided a bright-line mandate requiring that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case,” or the appeal will be quashed. Id. at 971, 976-977 . The Walker court applied its holding prospectively to any notices of appeal filed after June 1, 2018. In the instant case, appellant filed separate notices of appeal at each docket number in April 2019, and therefore, the Walker mandate applies. Appellant’s appeals were of a single order resolving issues arising on all five docket numbers. A review of the record further demonstrates that the notices of appeal referenced all five docket numbers in their respective captions. A recent en banc panel of this court held that such a practice does not invalidate appellant’s separate notices of appeal. Commonwealth v. Johnson, 236 A.3d 1141 , 1148 (Pa.Super. 2020) (en banc) (overruling the pronouncement in Creese, 216 A.3d at 1144, that “a notice of appeal may contain only one docket number”). Accordingly, we shall consider appellant’s claim on appeal. Appellant raises the following issue for our review: Was appellant’s [plea] counsel[4] ineffective in representing him as he advised [appellant] to enter a plea to multiple counts of conspiracy – burglary and theft by unlawful taking, knowing that the charges did not merge, and failing to make a counter-offer involving charges of burglary to which the charges would merge? 4Appellant was represented during his guilty plea hearing by John Parroccini, Esq. (hereinafter, “plea counsel”). -4- J. S62032/19 Appellant’s brief at 4 (extraneous capitalization omitted). Preliminarily, we must address the timeliness of appellant’s Rule 1925(b) statement, which was filed long after the expiration of the 21-day filing period. Generally, “a complete failure to file, or failure to timely file, a Rule 1925(b) statement results in waiver of the issues.” Commonwealth v. Thompson, 39 A.3d 335 , 341 (Pa.Super. 2012) (citation omitted); see also Pa.R.A.P. 1925(b)(4)(vii). As noted, the PCRA court ordered appellant to file a Rule 1925(b) concise statement within 21 days of the date of its May 1, 2019 order, or by May 22, 2019. Appellant, in turn, filed his Rule 1925(b) on July 3, 2019, raising the following infectiveness claims: 5. At the [PCRA] hearing, [appellant] testified that he only spoke with [plea counsel] briefly before entering a plea and lacked full knowledge of the consequences of the plea. .... 8. [Plea counsel] did not notify [a]ppellant that the charges did not merge. 9. [Plea counsel] did not make a counter-offer to attempt to have [appellant] plea[] to burglary rather than conspiracy – burglary. 10. [Plea counsel] was therefore ineffective in representing [appellant]. Rule 1925(b) statement, 7/3/19 at ¶¶ 5, 8-10 (citations and extraneous capitalization omitted). -5- J. S62032/19 The record contains no indication that appellant sought, or that the PCRA court granted, an extension of time for filing. However, the PCRA court’s Rule 1925(a) opinion addresses the sum and substance of appellant’s ineffectiveness claims as raised in his amended PCRA petition and at the March 29, 2019 evidentiary hearing. (See PCRA court opinion, 5/24/19 at 4-6.) Accordingly, we may consider the merit of appellant’s appeal. See Commonwealth v. Burton, 973 A.2d 428 , 432-434 (Pa.Super. 2009) (holding that, while the failure to file a timely court-ordered Rule 1925(b) statement is per se ineffectiveness of counsel, remand is not necessary and we can address the merits of the appeal where the court prepared a Rule 1925(a) opinion addressing the issues raised). Our standard of review of an order dismissing a petition under the PCRA is “whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988 , 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Lawson, 90 A.3d 1 , 4 (Pa.Super. 2014) (citations omitted). “This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136 , 140 (Pa.Super. 2002) (citation omitted). -6- J. S62032/19 The crux of appellant’s claim is that plea counsel was ineffective for advising him to plead guilty to five counts each of criminal conspiracy and theft by unlawful taking, which did not merge for sentencing purposes, and that this advice induced him to enter an unknowing and involuntary plea. (Rule 1925(b) statement, 7/3/19 at ¶ 5; see also amended PCRA petition, 1/28/19.) Appellant avers that plea counsel should have made a counter-offer to the Commonwealth for burglary and theft by unlawful taking, as these charges – unlike criminal conspiracy and theft by unlawful taking – would have merged for sentencing purposes. (Appellant’s brief 8-9.) For the following reasons, we disagree. To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining whether trial counsel was ineffective, derived from the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 , 687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Commonwealth v. Simpson, 66 A.3d 253 , 260 (Pa. 2013). The Pierce test requires a PCRA petitioner to prove: (1) the underlying legal claim was of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) the petitioner was prejudiced—that is, but for counsel’s deficient stewardship, there is a reasonable likelihood the -7- J. S62032/19 outcome of the proceedings would have been different. Id., citing Pierce, 527 A.2d at 975. This court has explained that a petitioner “must meet all three prongs of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d 1012 , 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted), appeal denied, 104 A.3d 523 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238 , 1244 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that counsel cannot be found ineffective for failing to raise a claim that is devoid of merit. See Commonwealth v. Ligons, 971 A.2d 1125 , 1146 (Pa. 2009). Upon review, we find that appellant’s ineffectiveness claim fails because he failed to satisfy the first prong of the Pierce test; namely, that the underlying legal claim was of arguable merit. See Simpson, 66 A.3d at 260. It is well settled that allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Orlando, 156 A.3d 1274 , 1281 (Pa.Super. 2017). This court has explained that in order to ensure a voluntary, knowing, and intelligent plea, the trial court, at a minimum, must ask the following questions during the guilty plea colloquy: -8- J. S62032/19 1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere? 2) Is there a factual basis for the plea? 3) Does the defendant understand that he or she has the right to a trial by jury? 4) Does the defendant understand that he or she is presumed innocent until found guilty? 5) Is the defendant aware of the permissible ranges of sentences and/or fines for the offenses charged? 6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Commonwealth v. Zeigler, 112 A.3d 656 , 660 (Pa.Super. 2015) (citation omitted). “A defendant is bound by the statements which he makes during his plea colloquy. As such, a defendant may not assert grounds for withdrawing the plea that contradict statements made when he entered the plea.” Orlando, 156 A.3d at 1281 (citations and internal quotation marks omitted). Instantly, appellant’s claim that he was induced to plead guilty because of plea counsel’s purported ineffectiveness is belied by the record. On September 7, 2017, the trial court conducted an extensive guilty plea colloquy, wherein appellant indicated that he understood his right to a jury trial and the fact that he is presumed innocent until found guilty. (Notes of testimony, 9/7/17 at 4-8.) Appellant also indicated that he could read and -9- J. S62032/19 write English proficiently, was not under the influence of drugs or alcohol, and was not undergoing treatment for mental illness. (Id. at 10-11.) Appellant was also provided a factual basis for his guilty plea and was informed of the elements of the offenses to which he was pleading guilty, as well as the permissible ranges of sentences for each charge. (Id. at 13-25.) Appellant acknowledged that he understood the nature of the charges to which he was pleading guilty. (Id.) Appellant further indicated that was entering a guilty plea of his own free will and understood that the trial court was not bound by the terms of the plea agreement unless it decided to accept such agreement. (Id. at 11-2, 27.) Additionally, appellant testified that he discussed his case with plea counsel, that no one had threatened, forced, or induced him to plead guilty, and that he was satisfied with plea counsel’s representation. (Id. at 12-13.) Based on the foregoing, we conclude that appellant’s claim that plea counsel’s advice induced him to enter an unknowing and involuntary plea is devoid of arguable merit, and his ineffectiveness claim must fail. See Ligons, 971 A.2d at 1146. Furthermore, we agree with the PCRA court’s rationale that, contrary to appellant’s contention, plea counsel had no reasonable strategic basis to make a counter-offer to the Commonwealth. See Simpson, 66 A.3d at 260. As the PCRA explained in its opinion: Testimony presented at the PCRA hearing was uncontradicted that no such alternative plea offer was made by the Commonwealth but only the offer to the five (5) conspiracy to commit burglary [counts] and - 10 - J. S62032/19 five (5) theft counts were offered. [The Assistant District Attorney (“ADA”)] stated in his testimony that the only plea offer made to [plea counsel] was to conspiracy. Specifically, [the ADA] wanted [a]ppellant to plea to conspiracy due to the pending charges against his co-defendant. [Plea counsel] also affirmed this was the only offer during his testimony. Additionally, [plea counsel] noted the Commonwealth would not have offered anything else in this case. Furthermore, [plea counsel] acknowledged that he fully advised [a]ppellant of the plea, along with the maximums and sentencing guidelines. No evidence was presented at the hearing that any other offers were provided. .... [Plea c]ounsel cannot be found to be ineffective for failure to inform [a]ppellant of a plea that was never offered or presented to him. Furthermore, [plea c]ounsel cannot be held ineffective for failing to negotiate offers further when the Commonwealth made clear the plea was a “take it or leave it.” PCRA court opinion, 5/24/19 at 5-6 (extraneous capitalization omitted). This court has long recognized that “[t]he law does not require that [appellant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily and intelligently made[,]” as was the case here. Commonwealth v. Anderson, 995 A.2d 1184 , 1192 (Pa.Super. 2010) (citation omitted), appeal denied, 9 A.3d 626 (Pa. 2010). Accordingly, we affirm the PCRA court’s March 29, 2019 order dismissing appellant’s PCRA petition. Order affirmed. - 11 - J. S62032/19 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2020 - 12 -

2020-12-03 18:17:04.78978+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S51006-20m - 104623494121231935.pdf

J-S51006-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL JACOBS : : Appellant : No. 733 MDA 2020 Appeal from the PCRA Order Entered March 5, 2020 In the Court of Common Pleas of York County Criminal Division, at No: CP-67-CR-0000989-1992 BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J. MEMORANDUM BY MURRAY, J.: FILED DECEMBER 03, 2020 Daniel Jacobs (Appellant) appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546. In addition, Appellant’s court-appointed appellate counsel (Appellate Counsel) has filed an application to withdraw as counsel and a “Turner-Finley Brief.”1 Because we conclude Appellate Counsel has not fulfilled the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and because we find Appellant was abandoned by his court-appointed PCRA ____________________________________________ 1 A Turner/Finley no-merit letter is the correct filing when counsel wishes to withdraw from representing a PCRA petitioner. Here, Appellate Counsel’s filing more closely resembles a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Since an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief instead of a Turner/Finley letter. See Commonwealth v. Widgins, 29 A.3d 816 , 817 n. 2 (Pa. Super. 2011). J-S51006-20 counsel (PCRA Counsel), we deny Appellate Counsel’s petition to withdraw, vacate the order denying PCRA relief, and remand for further proceedings. This case has a protracted history; the PCRA court explained: On February 16, 1992, York City police officers responded to a request for a welfare check at 933 West King Street, York, Pennsylvania. Shortly thereafter, Appellant, [ ] called police to report that he found his girlfriend [Girlfriend] and their infant daughter [Daughter] in the bathtub. Police arrived to find [Appellant] inside the home, and he was taken into custody. [Girlfriend] had suffered more than 200 stab wounds, and [Daughter] died from drowning. Following an investigation, [Appellant] was charged with two counts of Criminal Homicide, Murder of the First Degree. On or about September 18, 1992, [Appellant] was found guilty and sentenced to death by a jury of his peers for the murder of [Girlfriend] and to life in prison for the murder of [Daughter]. On direct appeal, the Pennsylvania Supreme Court affirmed the judgments of sentence and, subsequently, the denial of state collateral relief. [Appellant] then filed for relief in the form of a [h]abeas [c]orpus petition to the United States District Court for the Middle District of Pennsylvania. The District Court conditionally granted [Appellant’s] petition for resentencing and denied all other challenges to [Appellant’s] convictions. [Appellant] appealed to the United States Court of Appeals for the Third Circuit, which, on January 20, 2005, entered a judgment [which denied habeas corpus relief as to the murder of Daughter but granted habeas corpus relief as to the murder of Girlfriend on the basis that trial counsel was ineffective for failing to investigate and/or present evidence of diminished capacity]. **** On August 23, 2016, the [trial court] held a hearing to determine [Appellant’s] competency to stand trial. On September 30, 2016, [Appellant] was found competent to stand trial, but not to proceed pro se. -2- J-S51006-20 [A number of delays ensued, due to both the court calendar, and substitutions of counsel]. On November 13, 2018, [Appellant’s] retrial for the murder of [Girlfriend] was called to trial, and the Commonwealth and [defense counsel] arrived prepared to proceed with trial. At the outset of the proceeding, the Commonwealth indicated their plea offer to third degree murder for a concurrent sentence was still available. At that time, [Appellant] was already serving a sentence of life without parole on the conviction of the murder of [Daughter], which was affirmed on appeal. [Appellant] entered an Alford plea[2] to voluntary manslaughter of [Girlfriend] and was sentenced . . . [to] a period of 10 to 20 years, to run concurrent with the life sentence already imposed upon [Appellant] for the murder of [Daughter]. PCRA Court Opinion, 7/20/20, at 1-4, (footnotes omitted). At the outset, we are compelled to address the procedural missteps that occurred in the underlying PCRA proceedings. On July 8, 2019, Appellant, acting pro se, filed a timely PCRA petition. On September 3, 2019, the PCRA court appointed PCRA Counsel to represent Appellant, directed PCRA Counsel to file an amended PCRA petition or a Turner/Finley letter, and scheduled a hearing for November 27, 2019. On October 15, and December 17, 2019, PCRA Counsel filed and was granted requests for extension of time to file the ____________________________________________ 2 North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is a nolo contendere plea in which the defendant does not admit guilt but waives trial, and voluntarily, knowingly and understandingly consents to the imposition of punishment by the trial court. Id. at 37 . Provided the record reflects a factual basis for guilt, the trial court may accept the plea notwithstanding the defendant’s protestation of innocence. Id. Typically, as in the present case, a defendant is exchanging his plea for a reduced sentence or reduced charges. See Commonwealth v. Gunter, 771 A.2d 767 , 773 (Pa. 2001) (Justice Cappy concurring). -3- J-S51006-20 amended petition. In its December 18, 2019 order, the court directed PCRA Counsel to file the amended petition 60 days from the date of the order (on or before February 17, 2020), and scheduled a hearing for March 30, 2020. PCRA Counsel did not comply, and on March 5, 2020, the PCRA court sua sponte denied the PCRA petition pursuant to Pa.R.Crim.P. 905(B). 3 Order Denying Post-Conviction Relief, 3/5/20, at 1-2. On March 6, 2019, PCRA Counsel filed a third motion for extension of time to file an amended PCRA petition, which the PCRA court denied on March 10, 2019; the PCRA court also issued an order canceling the March 30, 2020 hearing. On March 13, 2020, PCRA Counsel filed a petition to withdraw as counsel; the petition did not reference counsel’s failure to file an amended petition, the court’s denial of the PCRA petition without notice or a hearing, or the cancellation of the PCRA hearing. Petition to Withdraw as Counsel, 3/13/20, at 1-2. Instead, it simply stated that PCRA Counsel had accepted a new position and was no longer available to represent criminal defendants. See id. That same day, despite ostensibly being represented by counsel, ____________________________________________ 3 The Rule states: “When a petition for post-conviction collateral relief is defective as originally filed, the judge shall order amendment of the petition, indicate the nature of the defects, and specify the time within which an amended petition shall be filed. If the order directing amendment is not complied with, the petition may be dismissed without a hearing.” -4- J-S51006-20 Appellant filed a pro se notice of appeal. On April 8, 2020, the PCRA court appointed Appellate Counsel to represent Appellant on appeal.4 On September 30, 2020, Appellate Counsel filed the petition to withdraw with this Court, attaching his no-merit letter, with notice to Appellant that he had the right to proceed pro se or retain private counsel. Appellant did not file a response. On appeal, Appellant presents one question: [Whether] trial counsel on re-trial rendered ineffective assistance by inducing Appellant to plead guilty to voluntary manslaughter rather than pursuing dismissal of Count 3 of the indictment (Murder of [Daughter]) because when the Court of Appeals for the Third Circuit vacated his conviction of First Degree Murder of [Girlfriend] (Count 1), the basis for conviction of Count 3 became legally invalid under the “closely related rule[?]” Turner-Finley Brief, at 4. We review the denial of PCRA relief by “examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error.” Commonwealth v. Busanet, 54 A.3d 35 , 45 (Pa. 2012). “Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding.” Id. ____________________________________________ 4 On July 20, 2020, the PCRA court issued an opinion which failed to address the manner in which the court dismissed the petition, and focused on the lack of merit to the one issue—ineffectiveness of retrial counsel—Appellant raised in his pro se PCRA petition. PCRA Ct. Op., at 5-9. -5- J-S51006-20 As noted, Appellate Counsel filed in this Court a petition for leave to withdraw and no-merit letter. Before we may review the merits of Appellant’s substantive claim, we must determine if counsel has satisfied the requirements to be permitted to withdraw from further representation. Pursuant to Turner/Finley, an “[i]ndependent review of the record by competent counsel is required before withdrawal [on collateral review] is permitted.” Commonwealth v. Pitts, 981 A.2d 875 , 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that independent review requires proof of: 1. A “no merit” letter by PC[R]A counsel detailing the nature and extent of his review; 2. The “no merit” letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed; 3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of why the petitioner’s issues were meritless; 4. The PC[R]A court conducting its own independent review of the record; and 5. The PC[R]A court agreeing with counsel that the petition was meritless. Id. (citation and brackets omitted). Additionally: Counsel must also send to the petitioner: (1) a copy of the “no- merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the -6- J-S51006-20 underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief. However, where counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the [court] must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d 717 , 721 (Pa. Super. 2007) (citations omitted). Upon review of Appellate Counsel’s petition to withdraw and the appellate brief submitted on Appellant’s behalf, we conclude that counsel has failed to substantially comply with the requirements of Turner and Finley, as restated in Pitts. While Appellate Counsel identified the claim asserted by Appellant, reviewed the merits of that claim and explained why the claim lacks merit, he failed to address the flawed procedural history, where Appellant was essentially abandoned by PCRA Counsel, and the PCRA court denied the petition after PCRA Counsel repeatedly failed to file an amended PCRA petition. Thus, Appellate Counsel has not complied with the requirements necessary to withdraw as counsel. We emphasize that a petitioner is entitled to counsel on a first PCRA petition, and appointed counsel “shall be effective throughout the post- conviction collateral proceedings, including any appeal from disposition . . . ). See Pa.R.Crim.P. 904(C), (F)(2); see also Commonwealth v. Figueroa, 29 A.3d 1177 (Pa. Super. 2011); Commonwealth v. Robinson, 970 A.2d 455 -7- J-S51006-20 (Pa. Super. 2009) (en banc). Concomitantly, our Supreme Court has recognized the right to effective assistance of PCRA counsel. See Commonwealth v. Jones, 815 A.2d 598 (Pa. 2002). “[D]ue process requires that the post conviction process be fundamentally fair. . . . Thus, petitioners must be given the opportunity for the presentation of claims at a meaningful time and in a meaningful manner.” Commonwealth v. Bennett, 930 A.2d 1264 , 1273 (Pa. 2007) (emphasis added). The Bennett court explained, “In this same vein, while the performance of PCRA counsel is not necessarily scrutinized under the Sixth Amendment, the performance of counsel must comply with some minimum norms, which would include not abandoning a client . . . .” Id. at 1273-74. Here, the record indicates that PCRA Counsel failed to “comply with minimum norms.” Despite receiving two extensions of time, counsel failed to file either an amended PCRA petition or Turner/Finley letter. Then, the PCRA court, without affording notice to Appellant as required by Pennsylvania Rule of Criminal Procedure 907, sua sponte dismissed the petition without undertaking a review of the merits.5 Thus, Appellant has been denied the fundamentally fair post-conviction process articulated in Bennett, and for this reason, we deny Appellate Counsel’s petition to withdraw, vacate the PCRA ____________________________________________ 5As noted above, the PCRA court addressed the merits of Appellant’s pro se petition belatedly and for the first time after Appellant filed this appeal. See generally, PCRA Court Opinion, 7/20/20. -8- J-S51006-20 court’s March 3, 2020 order denying Appellant’s pro se PCRA petition, and remand for further proceedings in conformance with the Rules of Criminal Procedure, beginning with the filing by counsel of an amended PCRA petition or a Turner/Finley letter. Petition to withdraw as counsel denied. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2020 -9-

2020-12-03 18:17:05.016152+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A21008-20m - 104623851121252857.pdf

J-A21008-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN CLEMENT : : Appellant : No. 1846 EDA 2019 Appeal from the Judgment of Sentence Entered May 29, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004551-2018 BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.: Filed: December 3, 2020 John Clement appeals from the judgment of sentence, imposed in the Court of Common Pleas of Montgomery County, after he entered a negotiated guilty plea to two counts of accidents involving damage to attended vehicle or property.1 The court sentenced Clement to an aggregate term of 1½ years of probation, plus the costs of prosecution, $500.00 in restitution, and a monthly $25.00 offender supervision fee. After careful review, we affirm. On April 20, 2018, Clement struck and damaged several vehicles traveling along Route 309 in Montgomery County, allegedly as a result of his van sustaining a flat tire. After Clement failed to remain at or return to the accident scenes, he was later located by police at a nearby shopping center where he was changing his flat tire. Clement was ultimately charged with the ____________________________________________ 1 75 Pa.C.S. § 3743. J-A21008-20 above-stated offense and related minor offenses. On May 29, 2019, the court held a guilty plea hearing where Clement testified that his sole source of income was $740/month in Supplementary Security Disability Income (SSDI),2 that he was currently homeless, and that he was living in his van. N.T. Negotiated Guilty Plea Hearing, 5/29/19, at 6. Clement’s fixed, monthly expenses included car insurance ($100/month), which is automatically deducted from his SSDI account, cell phone expenses (roughly $66/month), and a gym membership ($28/month).3 Finally, Clement testified that it would be difficult for him to pay court costs. Id. at 7. At the conclusion of Clement’s direct examination, defense counsel moved to waive the costs of prosecution. In denying this request, the court stated the following while imposing its sentence: Under Count 1, the defendant is sentenced to probation for a period of one year in the custody of the Montgomery County Adult Probation Department to date from today, May 29, 2019. There’s a $500 restitution, which is payable to [the victim]. I am going to deny the defendant’s request that costs be waived. He is already getting a good deal by not spending a month in jail. Under Count 2, the defendant is sentenced to six months’ probation and costs. And that shall run consecutive to the probation imposed on Count 1. ____________________________________________ 2 Clement alleged that he has a disabled leg. 3 Clement testified that he belongs to a gym so he “can shower . . . and do a little physical therapy . . . per [his] prosthetic operator.” N.T. Negotiated Guilty Plea Hearing, 5/29/19, at 7. -2- J-A21008-20 The defendant is also ordered to comply with all conditions of probation imposed by the Montgomery County Adult Probation Department and all terms of supervision. The defendant has to pay the monthly offender supervision fee. Id. at 14-15 (emphasis added). Clement entered a negotiated guilty plea to two counts of accident involving damage to attended vehicle or property, a third-degree misdemeanor; the court nol prossed the summary offense of duty to give information and render aid.4 Clement was sentenced to a one-year term of probation (on Count 1) and a consecutive term of six months of probation (on Count 2), $500.00 in restitution, costs of prosecution, and a $25.00 monthly offender supervision fee.5 The court noted that the sentence was in the mitigated range because “the victims are on board with th[e] agreement [and the Commonwealth agreed to the deal] “due to [Clement’s] financial situation and physical conditions.” Id. at 3-4. Clement timely filed post-sentence motions seeking modification of his sentence on the grounds that: (1) the imposition of costs and fees should be waived where a defendant is indigent; (2) costs should only be imposed if a ____________________________________________ 4 75 Pa.C.S. § 3744. 5 In addition to costs, a court can impose, as a condition of supervision, a monthly fee for administrative expenses attendant to offender supervision programs. Commonwealth v. Nicely, 638 A.2d 213 (Pa. 1994). The fee applies to offenders who have been placed under the supervision of a county probation department or the Pennsylvania Board of Probation and Parole. See 37 Pa. Code § 68.21 (Imposition of Condition); see also 18 P.S. § 11.1102(c) (Costs for offender supervision programs). -3- J-A21008-20 defendant is financially able to pay; (3) a defendant cannot afford to pay court costs if he or she is unable to afford to meet his or her basic life needs; and (4) if a person is in poverty, it follows that they are unable to pay costs. Defendant’s Post-Sentence Motions, 6/6/19, at 2-3. On June 10, 2019, the trial court granted, in part, Clement’s post-sentence motions; the court waived all costs, but noted that Clement “is still obligated to pay the offender supervision fee.” Order, 6/10/19. Clement filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He presents the following issues for our consideration: (1) Whether the trial court erred when it relied on the favorable terms of [] Clement’s plea agreement as a basis for denying, in part, his motion to waive costs, [] when the record could only support the conclusion that [] Clement lacked the ability to pay the costs. (2) Whether the trial court erred in imposing any costs at sentencing, absent evidence of [] Clement’s ability to pay. Appellant’s Amended Brief, at 3.6 We first note that a negotiated guilty plea contains an agreement with regard to both the charges to be brought and the specific penalties to be imposed upon a defendant. See Commonwealth v. Porreca, 567 A.2d 1044 , 1047 (Pa. Super. 1989), rev'd on other grounds, 595 A.2d 23 (Pa. 1991). When a negotiated sentence is accepted and imposed by the ____________________________________________ 6On April 27, 2020, our Court granted Clement’s application to amend his appellate brief. -4- J-A21008-20 sentencing court, there is no authority to permit a challenge to the discretionary aspects of that sentence. Commonwealth v. Reichle, 589 A.2d 1140 , 1141 (Pa. Super. 1991). A plea of guilty generally amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea. Id. Generally, a claim that a court lacks authority to impose costs constitutes a challenge to the legality of the sentence. Commonwealth v. Garzone, 993 A.2d 306 (Pa. Super. 2010), aff’d, 34 A.3d 67 (Pa. 2102). Here, however, Clement “challenges the discretionary amount of costs the sentencing court imposed because the court relied on impermissible factors and because the amount was unsupported and excessive in light of the record.” Appellant’s Amended Brief, at 1; see id. at i (“The [t]rial [c]ourt [a]bused its [d]iscretion in [c]harging Mr. Clement with the [c]osts of the [o]ffender-[s]upervision [f]ee.”).7 Accordingly, we interpret Clement’s challenge as one attacking the court’s discretion to impose the supervision fee and not its legal authority to do so. However, because Clement has entered ____________________________________________ 7 Clement states that the appropriate standard of review in this case where there is “an unreasonable sentence is [an] abuse of discretion. See Commonwealth v. Walls, 926 A.2d 957 , 962 (Pa. 2007).” Appellant’s Amended Brief, at 1. -5- J-A21008-20 a negotiated guilty plea, he has waived all defects concerning the discretionary aspect of his sentence. Reichle, supra.8 ____________________________________________ 8 However, even if Clement’s issues were not waived, he would not be entitled to relief on appeal. From the trial judge’s above-quoted language at sentencing, see supra at 2-3, it is clear that the court originally denied waiver of the costs of prosecution, not the supervision fee, based upon its belief that Clement was “already getting a good [plea] deal.” N.T. Negotiated Guilty Plea Hearing, 5/29/19, at 14. Thus, to the extent that Clement argues the court improperly refused to waive the supervision fee based upon his “getting a good deal,” we find the argument meritless. With regard to Clement’s assertion that the trial court’s “[i]mposi[tion of] costs [and fees]” was “unreasonable[,] excessive and a clear abuse of discretion” because he “is entirely unable to pay,” Appellant’s Amended Brief, at 10, we find he is entitled to no relief. First, we note that the court did, in fact, waive Clement’s costs. See supra at 4. Thus, this argument is moot. Second, with regard to the imposition of supervision fees, we note that pursuant to 37 Pa. Code § 68.21 : The sentencing judge of the court of common pleas shall impose upon an offender, as a condition of supervision, a monthly supervision fee unless the court or a supervising agency designated by the court determines that it should be reduced, waived or deferred based upon one or more of the following criteria: (1) The offender is 62 years of age or older with no income. (2) The offender is receiving public assistance. (3) The offender is enrolled as a full-time student for 12 semester credit hours in an educational organization approved by the United States Department of Education. (4) The offender is incarcerated. (5) The offender is not employable due to a disability, as determined by an examination acceptable to or ordered by the court. (6) The offender is responsible for the support of dependents and the payment of a supervision fee constitutes an undue hardship on the offender. -6- J-A21008-20 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/20 ____________________________________________ (7) The client is participating in an inpatient treatment program. (8) Other extenuating circumstances as determined by the court or a supervising agency designated by the court. 37 Pa. Code § 68.21 (emphasis added). Moreover, under 18 P.S. § 11.1102, the offender supervision fee is mandatory “unless the court finds that the fee should be reduced, waived or deferred based on the offender’s present inability to pay.” Id. at § 11.1102(c); see also § 11.1102(e)(1) (“the fee shall automatically become a part of the supervision conditions [of probation] . . . unless the court [] makes a finding that the offender is presently unable to pay” based on enumerated six factors in section 11.1102(e)(2)(i-vi)). Thus, while a court is required to impose the $25.00 fee upon a defendant who is placed under the supervision of a county probation department, a court may determine that due to a defendant’s inability to pay the fee should be reduced, waived or deferred. Notably, neither statute requires a court to first make a determination regarding a defendant’s ability to pay before imposing the fee. Merely because a court has the discretion to waive the fee, does not mean that it abuses its discretion if it chooses not to do so. However, while the court did not choose to waive Clement’s fee, it likely considered his homelessness, financial situation, and disability when waving his costs of prosecution. -7-

2020-12-03 18:16:23.326794+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-5522.pdf

[Cite as Hillman v. Larrison, 2020-Ohio-5522 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Robert L. Hillman, : Plaintiff-Appellant, : No. 20AP-7 v. : (C.P.C. No. 15CV-2664) David Larrison, : (ACCELERATED CALENDAR) Defendant-Appellee. : D E C I S I O N Rendered on December 3, 2020 Robert L. Hillman, pro se. Zach Klein, City Attorney, and Janet R. Hill Arbogast, for appellee. ON APPLICATION FOR RECONSIDERATION BRUNNER, J. {¶ 1} Plaintiff-appellant, Robert L. Hillman, has filed an application seeking reconsideration of this Court's decision in Hillman v. Larrison, 10th Dist. No. 20AP-7, 2020-Ohio-4896 ("Hillman V"). For the following reasons, we deny the application. I. FACTS AND PROCEDURAL HISTORY {¶ 2} App.R. 26(A) provides for the filing of an application for reconsideration. We have previously set forth the standard by which we evaluate applications for reconsideration under App.R. 26: " 'App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.' " Corporex Develop. & Constr. Mgt., Inc. v. Shook, Inc., 10th Dist. No. 03AP-269, 2004-Ohio-2715 , ¶ 2, quoting State v. Owens, 112 Ohio App.3d 334 , 336, 678 N.E.2d 956 (11th Dist.1996). When presented with an application for reconsideration filed pursuant to No. 20AP-7 2 App.R. 26, an appellate court must determine whether the application "calls to the attention of the court an obvious error in its decision, or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been." Columbus v. Hodge, 37 Ohio App.3d 68 , 523 N.E.2d 515 (10th Dist.1987), syllabus. Importantly, an appellate court will not grant "[a]n application for reconsideration * * * just because a party disagrees with the logic or conclusions of the appellate court." Bae v. Dragoo & Assocs., Inc., 10th Dist. No. 03AP-254, 2004-Ohio-1297 , ¶ 2. State v. Harris, 10th Dist. No. 13AP-1014, 2014-Ohio-672 , ¶ 8. An application for reconsideration is not intended for cases in which a party simply disagrees with the reasoning and conclusions of the appellate court. Drs. Kristal & Forche, D.D.S., Inc. v. Erkis, 10th Dist. No. 09AP-06, 2009-Ohio-6478 , ¶ 2, citing State v. Owens, 112 Ohio App.3d 334 , 336, 678 N.E.2d 956 (11th Dist.1996). An application for reconsideration will be denied where the moving party "simply seeks to 'rehash the arguments' " presented in the initial appeal. Appenzeller v. Ohio Dept. of Rehab & Corr., 10th Dist. No. 17AP-747, 2018-Ohio-1698 , ¶ 4, quoting Garfield Hts. City School Dist. v. State Bd. of Edn., 85 Ohio App.3d 117 , 127, 619 N.E.2d 429 (10th Dist.1992). Thus, if an application for reconsideration does not raise an issue that either was not considered at all or was not fully considered, nor demonstrates the court made an obvious error or rendered a decision unsupportable under the law, it should not be disturbed. Harris at ¶ 8. Hal v. State Dept. of Edn., 10th Dist. No. 18AP-301, 2020-Ohio-204 , ¶ 2. {¶ 3} In his application, Hillman raises neither an obvious error nor an issue this Court should have, but did not, fully consider. Rather, Hillman argues anew the same points that this Court fully considered in connection with rendering its merit decision. {¶ 4} Our decision in Hillman V addressed Hillman's single assignment of error that the trial court had denied him substantive due process and equal protection of the law when it refused to address his claim that court costs and filing fees were illegally imposed on him in the underlying matter and our determination that the trial court had not denied Hillman those rights. We found that the trial court's judgment entry did not impose any court costs (or filing fees) on Hillman, he was not adversely affected, and the issue of court costs was not properly before this Court. No. 20AP-7 3 {¶ 5} Our decision also discussed our determination that Hillman's grievance lay with the Clerk of Courts, who is not a party to this action. Consequently, Hillman's allegations concerning fees was not something this Court could consider. {¶ 6} Hillman further asserts in his application that this Court, in deciding Hillman V, denied him due process when it struck the reply brief he filed after appellee filed a brief that erroneously indicated that Hillman V had been docketed to this Court's regular calendar. As Hillman acknowledges in his application for reconsideration, Hillman V was docketed to the accelerated calendar. Neither appellee's erroneous designation of "Regular Calendar" on its brief, nor this Court's typographical error on its decision rendered October 13, 2020 and judgment entry issued October 15, 2020, reassigned Hillman V from the accelerated calendar to the regular calendar. The rules applicable to appeals assigned to the accelerated docket apply to Hillman V, and Hillman's reply brief was therefore stricken, as it should have been. There is no obvious error or decision unsupportable under the law. Hal; Harris. Contrary to Hillman's assertion, this Court provided a full and fair review of his appeal under the applicable rules. {¶ 7} Hillman's disagreement with our review of the trial court's decision according to law or conclusions therefrom does not support his contention that we should reconsider our previous decision and his application is denied. Application for reconsideration denied. KLATT and LUPER SCHUSTER, JJ., concur.

2021-01-27 07:14:56.646338+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17859&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

Affirm and Opinion Filed January 21, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01085-CR No. 05-19-01086-CR EDUARDO GUADALUPE GONZALEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-19-0187 MEMORANDUM OPINION Before Chief Justice Burns,1 Justice Pedersen, III, Justice Goldstein2 Opinion by Justice Pedersen, III A jury convicted appellant of two counts of aggravated sexual assault of a child and assessed his punishment at thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice in each case. In a single issue, appellant argues he received ineffective assistance of counsel. We affirm. 1 The Honorable Justice David L. Bridges participated in the submission of this case; however, he did not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. Chief Justice Robert Burns has substituted for Justice Bridges in this cause. 2 The Honorable Justice Bonnie Goldstein succeeded the Honorable Justice David Evans, a member of the original panel. Justice Goldstein has reviewed the briefs and the record before the Court.  Background Appellant and the complainant attended the same high school and met on Instagram. They agreed to meet up at a Walmart, and after meeting there, they drove their own cars to a nearby park where they were to meet up with friends of appellant. Once at the park, they got into appellant’s car. The complainant testified that, although she told him to stop, appellant forcibly penetrated her sexual organ and then forced her to engage in oral sex. Appellant concedes that the two had sex on that occasion, but he testified that the sex was consensual. At the time of the charged offense, the evidence showed that appellant was seventeen years old; the complainant was fifteen. Appellant was charged with two counts of aggravated sexual assault of the complainant by penetrating both her mouth3 and her sexual organ4 with his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (ii); (a)(2)(A)(ii), (iv). In each charge, jurors were asked whether appellant committed aggravated sexual assault or the lesser included offense of sexual assault. Jurors found him guilty, in both cases, of aggravated sexual assault. This appeal followed. 3 This is trial court case number 2-19-0187 and our case number 05-19-01085-CR. 4 This is trial court case number 2-19-0188 and our case number 05-19-01086-CR. –2–  Ineffective Assistance of Counsel Appellant argues that his trial counsel was ineffective because he failed to request a jury question on the lesser included offense of indecency with a child. He observes that both submitted questions—aggravated sexual assault and sexual assault—include an element of force or lack of consent. Thus, jurors were given only the choice between agreeing that force was used and acquitting appellant. He acknowledges that it would have been difficult for jurors to choose acquittal—even if they found his testimony credible—when he had acknowledged having sex with a minor. He contends that if offered the further option of indecency with a child, the jurors could have believed his testimony that there was consent, but still found him guilty and punished him for having sex with a minor. The offense of indecency with a child requires proof the defendant engaged in sexual contact with a child younger than seventeen years of age, PENAL § 21.11(a), which appellant admitted to at trial. Thus, he contends, the facts “fit” this offense. He contends further that the facts fit an affirmative defense to indecency of a child, namely that he: (1) was not more than three years older than the victim and of the opposite sex; (2) did not use duress, force, or a threat against the victim at the time of the offense; and (3) at the time of the offense: (A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or –3–  (B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section. Id. § 21.11(b). Had his counsel requested the indecency submission, appellant argues, the result of the trial could have been very different. The State concedes that indecency with a child can be a lesser included offense of aggravated sexual assault, citing Evans v. State, 299 S.W.3d 138 , 143 (Tex. Crim. App. 2009). But it argues that (1) the record is insufficiently developed for us to determine whether appellant’s counsel was ineffective for not requesting the jury question, and (2) given the complainant’s testimony, “a jury could not rationally have found that if [appellant] was guilty, he was guilty only of indecency with a child.” We conclude the State’s first argument is dispositive, and therefore we do not reach the issue of the viability of the lesser included offense in this case. To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance of the evidence that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 , 687–88 (1984); Salinas v. State, 163 S.W.3d 734 , 740 (Tex. Crim. App. 2005). We examine the totality of counsel’s representation to determine whether appellant received effective assistance. Thompson v. State, 9 S.W.3d 808 , 813 (Tex. Crim. App. 1999). We do not judge counsel’s strategic decisions in hindsight, and we strongly presume counsel’s competence. Id. Any allegation of ineffectiveness must be firmly founded –4– in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. In most cases, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. Id. at 813–14. When the record contains no evidence of the reasoning behind the trial counsel’s actions, we cannot conclude that counsel’s performance was deficient. See Jackson v. State, 877 S.W.2d 768 , 772 (Tex. Crim. App. 1994). In this case, appellant did not file a motion for new trial. Thus, the record provides no discernible explanation of the motivation behind counsel’s decision for which appellant claims harm. We will not speculate as to counsel’s possible motives. “Ineffective assistance of counsel claims are not built on retrospective speculation; they must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828 , 835 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813–14). No such record exists in this case. Accordingly, we cannot say that appellant received ineffective assistance from his counsel. We overrule appellant’s single issue.5 5 Because the reasonableness of counsel’s choices often involves facts that do not appear in the appellate record, a petition for writ of habeas corpus is usually the appropriate vehicle to investigate ineffective assistance claims. Mitchell v. State, 68 S.W.3d 640 , 642 (Tex. Crim. App. 2002). The Texas Code of Criminal Procedure entitles an indigent habeas applicant to appointed post-conviction counsel whenever the court concludes that the interests of justice require representation. TEX. CRIM. PROC. ANN. art. 1.051(d)(3); see also Ex parte Garcia, 486 S.W.3d 565 , 578 (Tex. Crim. App. 2016) (Alcala, J. dissenting) (“The existing statutes, therefore, provide an adequate basis upon which to conclude that appointment of counsel is required in any case in which either the pleadings or the face of the record gives rise to a colorable, nonfrivolous claim for which legal expertise is required in order to ensure that the claim is afforded meaningful consideration.”); Mercado-Pena v. State, No. 05-18-01008-CR, 2020 WL 1685336 , at *6, n.5 (Tex. App.—Dallas Apr. 7, 2020, pet. ref’d) (mem. op.; not designated for publication). –5–  Conclusion We affirm the trial court’s judgments. /Bill Pedersen, III// BILL PEDERSEN, III 191085f.u05 JUSTICE 191086f.u05 Do Not Publish TEX. R. APP. P. 47 –6–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT EDUARDO GUADALUPE On Appeal from the 382nd Judicial GONZALEZ, Appellant District Court, Rockwall County, Texas No. 05-19-01085-CR V. Trial Court Cause No. 2-19-0187. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and Justice Goldstein participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of January, 2021. –7–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT EDUARDO GUADALUPE On Appeal from the 382nd Judicial GONZALEZ, Appellant District Court, Rockwall County, Texas No. 05-19-01086-CR V. Trial Court Cause No. 2-19-0188. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Chief Justice Burns and Justice Goldstein participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of January, 2021. –8–

2020-12-03 18:17:16.851058+00

http://www.tsc.state.tn.us/sites/default/files/mclaughlin.thomas.opn_.pdf

12/03/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs October 13, 2020 THOMAS MCLAUGHLIN v. STATE OF TENNESSEE Appeal from the Circuit Court for Montgomery County Nos. 41000644, CC2015-CR-1266 William R. Goodman, III, Judge No. M2019-02306-CCA-R3-PC The petitioner, Thomas McLaughlin, appeals the denial of his petition for post-conviction relief, which petition alleged that he was deprived of the effective assistance of counsel at a revocation hearing.1 Discerning no error, we affirm the denial of post-conviction relief. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined. Gregory D. Smith, Clarksville, Tennessee, for the appellant, Thomas McLaughlin. Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Lee Willoughby, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Because the trial record for the petitioner’s underlying convictions is not included in the record on appeal, we glean the following facts from the post-conviction court’s written order denying relief. In November 2012, the petitioner pleaded guilty to three counts of the sale of a Schedule II controlled substance and one count of possession with intent to sell a controlled substance. The trial court sentenced the petitioner to eight years’ probation. The petitioner violated the terms of his probation in April 2014 and March 2016, and the trial court ordered the petitioner to serve 58 and 60 days respectively before being returned to probation. In May 2016, the petitioner pleaded guilty to one count 1 Because whether the petitioner was serving a sentence of community corrections or of probation being supervised by community corrections is at issue in this case, we will refer to the proceeding at issue simply as the revocation hearing. of evading arrest, and the trial court imposed a two-year sentence to be served on probation and to be served consecutively to the eight-year sentence. In July 2017, the petitioner again violated the terms of his probation, and the trial court ordered the petitioner to serve 150 days, after which the petitioner would be returned to probation with the special condition that the petitioner “‘serve the sentence under the supervision of the Community Corrections Program for a period of 10 year(s).’” The trial court’s order included the statement that the remainder of the petitioner’s “‘sentence was transferred to Community Corrections’” and that the petitioner was “‘on original terms.’” In December 2017, a violation warrant issued, alleging that the petitioner violated the terms of his supervision by failing to report, failing to abide by curfew, failing drug screens, and failing to obtain in-patient drug treatment. An amended warrant issued in June 2018, alleging that the petitioner had garnered a new arrest for unlawful possession of drug paraphernalia. At the November 14, 2018 revocation hearing, the trial court found that the petitioner had violated the terms of his supervision and ordered him to serve the balance of his sentence in confinement. On December 4, 2018, the petitioner filed a pro se pleading that was not included in the record but was apparently styled as a notice of appeal but having the substance of a post-conviction petition. After the appointment of counsel and by the agreement of the parties, the pro se filing was deemed a petition for post-conviction relief, and the petitioner abandoned his appeal of the trial court’s revocation order. The petitioner filed an amended post-conviction petition, alleging that he was deprived of the effective assistance of counsel in preparation for and during the revocation hearing of November 2018. At the November 2019 evidentiary hearing, the petitioner’s first revocation counsel testified that he was appointed to represent the petitioner for proceedings on an alleged violation of community corrections. He testified that he had “quite extensive” communication with the petitioner, through in-person meetings and letters. Much of their communication involved discussions of the number of days of jail credit petitioner had earned on his sentence. He recalled that the petitioner “was particularly interested” in receiving credits for time he spent in a rehabilitation facility. Counsel stated that he relayed to the petitioner all offers or replies from the State. At some point before the revocation hearing, counsel withdrew from representation, in part, because the petitioner “just didn’t like the State’s response. He wanted something that the State wasn’t willing to give.” First counsel spoke with the petitioner’s second revocation counsel, and handed over his file, including copies of several letters that he had written to the petitioner. One of the letters “in particular . . . laid out the pertinent current . . . position of the case.” At the time that first counsel withdrew from representation, the State had indicated that the petitioner had -2- “‘gone to the well once too many times’” in negotiations of a settlement and that the petitioner could either “‘[t]ake it or leave it’” regarding a settlement offer. Three letters from first counsel to the petitioner were exhibited to counsel’s testimony. The first letter, dated July 23, 2018, addressed the petitioner’s “two major misunderstandings of [his] current position.” As to the amount of time the petitioner could be ordered to serve if found in violation of the terms of his release, counsel’s letter stated: First, at one point you say that you have “about 8 years built on your 10 year sentence.” That is not near the case. . . . The sentences in [five prior] cases expired in April 2012. So, you started serving the 8-year sentence . . . on probation on April 28, 2012 by my reckoning. So, you have only been on that probation for 6 years. But, as you know, you do not get “street” time for probation. So, if the judge orders you to serve the balance of that sentence, you will serve 8 years (not just 2) less time served. The fact that your supervision was transferred to community corrections does not necessarily change that. And, of course, you have the other 2-year sentence on top of that. Counsel’s first letter also addressed the number of credits the petitioner had earned: Second, . . . you mentioned elsewhere that [you] have around 4 years of jail time combined on your sentence. That is also not nearly true. As far as jail time itself is concerned, since this sentence went into effect, you have only be[en] in jail about 324 calendar days . . . . Time you spent in jail before 2014 went to satisfy [prior] cases. So, you need to understand where you stand as far as what is left on your sentence. You have an effective 10-year sentence (8 years plus 2 years). As of your hearing date in September, you will have about 324 calendar days of jail credit against that sentence. If the court revokes probation and orders you to serve the balance of your sentences, you will serve the 10-year sentence minus the 324 calendar days of credit. In the second letter to the petitioner, dated September 19, 2018, first counsel stated that the State agreed to credit the petitioner 30 days against the two-year sentence for the time the petitioner spent in rehabilitation. The letter went on to explain in detail the offer from the State: -3-  Your deal is that you will waive a hearing and admit that you are in violation. The 8-year sentence . . . will be deemed satisfied. In and of itself, that is a huge concession by the State. That sentence didn’t commence until April 2012, so even if you perfectly did probation, you have 1-1/2 years left on that sentence. If the State pushed the issue, they could make you serve the balance of that sentence and you only have 324 calendar days of credit against it, so you would have 7 more years to flatten that 8 years. Then there’s the 2-year consecutive sentence . . . . Your agreement is to serve that sentence. Since this is the trailing sentence, by rights, any and all credit (including rehab credit that you really aren’t entitled to by law) ought to go against . . . that 8-year sentence. But, for whatever reason, the State is willing to let that 30 days go against the 2-year sentence. First counsel’s third letter to the petitioner, dated September 25, 2018, stated that because the petitioner could not reach an agreement with the State, noting that the petitioner “want[ed] 134 days credit, [but] the State is only willing to grant 30 days,” “we have no choice but to have a revocation hearing and see what the judge does with the entire 10 year effective sentence.” During cross-examination, first counsel explained that the offer from the State was that “the State would deem the eight-year sentence satisfied,” and the petitioner would serve the consecutive two-year sentence. Counsel explained that the petitioner wanted the State to agree to give him approximately 134 days’ credit on his two-year sentence, which counteroffer the State would not accept. Counsel stated that he explained to the petitioner the exposure he faced if he chose to have a hearing on the matter, including that the petitioner “had not accumulated very many actual calendar days’ credit against that eight-year sentence” and that the State’s willingness to deem the eight-year sentence satisfied was a good offer. Counsel further stated that, upon the petitioner’s rejection of the offer and insistence that the State credit him 134 days on the two-year sentence, the State rescinded the offer. Second revocation counsel, appointed to represent the petitioner upon first counsel’s withdrawal, testified that he represented the petitioner for alleged violations of community corrections. He stated that he received documentation from first counsel related to the petitioner’s case and that he reviewed the first and third letters from first counsel to the petitioner, but he did not specifically recall the second letter. Second counsel -4- said that, after reviewing the record on the petitioner’s case, he contacted the State to determine if “there was any chance to change the offer.” At that time, the State re-extended the original offer that called for an effective two-year sentence to serve. Second counsel stated that he discussed the State’s plea offer with the petitioner, and the petitioner indicated that he believed that he should receive additional days of credit on the two-year sentence. The State again rejected the petitioner’s request for additional credit and “indicated that a hearing was probably the likely outcome.” Second counsel said that he was prepared to have a hearing if the petitioner did not accept the State’s offer and that he met with the petitioner to discuss the hearing. He could not recall the specifics of his conversations with the petitioner and specifically did not remember what he had told the petitioner regarding the amount of time he would be required to serve if ordered to execute his sentence. Second counsel stated, however, that he “probably would have deferred to” the information and advice contained in first counsel’s letters to the petitioner. During cross-examination, second counsel stated that he had concluded that the information contained in first counsel’s letters was accurate as to the number of credits to which the petitioner was entitled and that he relayed that information to the petitioner. Counsel said that upon relaying to the State the petitioner’s counteroffer to apply a certain number of jail credits to the two-year sentence, the State again revoked the offer and said, “‘We’re just going to have a hearing.’” He stated that the petitioner seemed to understand everything counsel discussed with him, including his possible exposure at a hearing. The petitioner testified that he received three letters from first counsel. He corresponded with first counsel by letter, but he did not speak with first or second counsel about the content of first counsel’s letters. The petitioner stated that second counsel met with him only once before the revocation hearing, at which time second counsel “[v]aguely” discussed the petitioner’s situation with him. The petitioner calculated that 45 days elapsed between the time first counsel withdrew from representation and the revocation hearing. The petitioner said that, in his view, his sentence expiration date “was the most important part.” The petitioner stated that he tried to get first counsel to explain to him whether the 134 days of credit that he believed he had earned applied to the eight-year sentence or the two-year sentence. He also asked first counsel whether the time that he had completed on probation applied to his sentence. The petitioner said that it was his understanding that because his probation was transferred to community corrections, the time he had completed on probation would apply to his community corrections time and that his sentence expiration date would not be extended by a transfer to community corrections. The petitioner said that, through letters, first counsel assured him “that’s -5- what’s going to happen.” The petitioner stated that, after he failed a drug screen, first counsel told him that he had violated the terms of his release but that the State had offered to deem the eight-year sentence satisfied and allow the petitioner to serve the two-year sentence with 30-days of credit from the petitioner’s time in a rehabilitation program. The petitioner stated that when second counsel began representation, the petitioner asked him if he knew that the petitioner was on community corrections rather than probation, and counsel responded “That’s right. . . . You’re on community corrections.” The petitioner also claimed that second counsel assured him that his eight- year sentence would expire in April 2019 “[n]o matter what . . . because you’re on community corrections.” The petitioner said that second counsel told him that, should the trial court revoke his community corrections placement and order him to execute his sentence, his eight-year sentence would expire in April 2019, at which time he would begin serving his two-year sentence. The petitioner also said that second counsel explained to him that he was “looking at about a six or seven-month difference” between accepting the State’s offer and being ordered to serve his sentence at a hearing. The petitioner added that second counsel acknowledged that he had never worked on a community corrections case before. The petitioner acknowledged that he was seeking approximately 100 days of credit beyond what the State was offering. The petitioner insisted that he believed he risked serving only an additional four to seven months by rejecting the State’s offer because second counsel assured him that his two-year sentence would begin April of 2019 “[n]o matter what.” After the court ordered the petitioner to execute his sentence, the petitioner asked second counsel how many days of credit he was given, and counsel told him that he would contact him later at the jail. The petitioner later learned that his sentence was not set to expire until January 2027. The petitioner stated that, had counsel explained that he could be ordered to serve most of the eight-year sentence in addition to the two-year sentence, he would have accepted the State’s offer. During cross-examination, the petitioner acknowledged that he knew that he had a 10-year effective sentence, but he reiterated that neither of his attorneys had explained to him that his sentence expiration date could change if he was ordered to execute his sentence. The petitioner acknowledged that he had previously been ordered to serve a 12-year sentence following the revocation of his probation in an unrelated case, but he asserted that the trial court accredited him all of the time that he had earned in that case. The petitioner said that, although first counsel addressed some issues regarding jail credits in his letters, the petitioner never had an opportunity to discuss the matter with first counsel in person. The petitioner said that he knew that he was entitled to some credits on his sentence but that he did not know exactly how many or to which sentence they applied and that he “was actually trying to find out the details by the law” where the credits applied. -6-  The petitioner stated that second counsel relayed to him the State’s offer with the same terms. The petitioner asked second counsel whether he was eligible for certain jail credits, but before the petitioner received clarification on how jail credits would apply to his sentences, the State rescinded the offer, and the petitioner had a hearing on the matter. The petitioner stated that he received no credits toward his sentence at the hearing. The petitioner maintained that, although his suspended sentence began as probation, the sentence “got switched” to community corrections. He reiterated that had second counsel properly advised him about the implications of being ordered to execute his sentence, he would have accepted the State’s offer. The petitioner asserted that he had not rejected the State’s offer but instead had simply not yet accepted because he was trying to discuss with counsel the details of the offer and what jail credits he was entitled to. On redirect examination, the petitioner stated that first counsel left a meeting and moved to withdraw after the petitioner asked to see the law addressing jail credits so that he could see for himself how many days of credit to which he was entitled. He reiterated that when he asked second counsel about the matter of jail credits, second counsel assured him that if the court ordered him to serve his eight-year sentence, that sentence would expire in April 2019 as originally scheduled. In its written order denying post-conviction relief, the post-conviction court concluded that the petitioner was not entitled to post-conviction relief on the basis of ineffective assistance of counsel because, even if second counsel had advised the petitioner based on an inaccurate calculation of the time remaining on his sentence, the petitioner had failed to show that he was prejudiced. The post-conviction court did not make an explicit determination of whether the petitioner was serving a sentence of community corrections or a sentence of probation that was merely supervised by community corrections, but the court found that, at the revocation hearing, the petitioner was not resentenced but was instead “ordered to serve his original sentence.” In this timely appeal, the petitioner contends that he was deprived of the effective assistance of counsel at the hearing revoking his sentence of community corrections, arguing that second counsel failed to explain the ramifications of rejecting the State’s offer. The State argues, first, that the issue is not cognizable in a post-conviction proceeding because the petitioner was serving a probated sentence that was merely supervised by community corrections. Alternatively, the State contends that the trial court did not err by denying post-conviction relief. As an initial matter, we must first determine whether the petitioner was serving a sentence of probation or a sentence to community corrections at the time of the revocation hearing because individuals sentenced to probation do not enjoy the same -7- benefits as those sentenced to a community corrections placement. One such benefit, which was of particular importance to the petitioner, is the ability to build “street” time. See T.C.A. § 40-36-106(e)(4). “[A] defendant whose probation is revoked is not entitled to credit toward the sentence for time on probation, while a defendant whose community corrections sentence is revoked is entitled to credit toward the sentence for time spent in community corrections prior to the revocation.” Carpenter v. State, 136 S.W.3d 608 , 612 (Tenn. 2004). Another such benefit is the ability to pursue post-conviction relief following the revocation proceeding. “[T]he issue of ineffective assistance of counsel in a revocation of a community corrections sentence may be raised in a post-conviction proceeding,” Carpenter, 136 S.W.3d at 612 , but “the Tennessee Post-Conviction Procedures Act does not permit the filing of a petition under its provisions to attack collaterally the validity of a proceeding to revoke the suspension of sentence and/or probation,” Young v. State, 101 S.W.3d 430 , 433 (Tenn. Crim. App. 2002). At issue in this case is Code section 40-36- 106(f), which allows a trial court to “permit[] an eligible defendant to participate in a community-based alternative to incarceration as a condition of probation in conjunction with a suspended sentence.” T.C.A. § 40-36-106(f). Offenders thus sentenced are serving a sentence of probation and are not entitled to the benefits of a community corrections sentence. The petitioner acknowledges that his sentences were originally imposed as sentences of probation but argues that, following the July 2017 revocation of his probation, his sentence was converted to a community corrections sentence. Although a trial court may, upon the revocation of a sentence of probation, “resentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration authorized by chapter 36 of this title,” see T.C.A. § 40-35-310(b), nothing in the record indicates that the trial court actually resentenced the petitioner following the July 2017 revocation. The post-conviction court did not make an explicit finding relative to the nature of the petitioner’s sentence but did observe that, after the petitioner’s July 2017 probation violation, the trial court returned the petitioner to probation and ordered him to “serve the sentence under the supervision of the Community Corrections Program.” This language indicates that the trial court merely transferred the supervision of the petitioner’s probation to the community corrections program under the terms of Code section 40-36-106(f) and did not convert his sentence to a community corrections placement. Our conclusion that the petitioner was serving a sentence of probation at the time of the revocation proceeding at issue in this case is further bolstered by first counsel’s first letter to the petitioner, which explained in detail that the petitioner was still serving a term of probation at the time of the revocation proceeding and that the petitioner could be ordered to serve the entire effective 10-year sentence, less only jail credits, if the trial court revoked his probation. The petitioner presented no evidence to contradict first counsel’s conclusions. Moreover, the petitioner failed to exhibit to the hearing any of the underlying trial record and specifically did not include the order from the trial court transferring the supervision of the petitioner’s -8- sentence to community corrections. In consequence, we must assume the post-conviction court’s representation of the trial court’s order was correct. See State v. Richardson, 875 S.W.2d 671 , 674 (Tenn. Crim. App. 1993). Because the petitioner was serving a sentence of probation supervised by community corrections and because “the Post-Conviction Procedures Act . . . does not provide a cause of action for a collateral attack on a probation revocation proceeding,” Young, 101 S.W.3d at 430-31 , we affirm the judgment of the post-conviction court. _________________________________ JAMES CURWOOD WITT, JR., JUDGE -9-

2020-12-03 18:20:16.756138+00

http://www.courts.wa.gov/opinions/pdf/368939_unp.pdf

FILED DECEMBER 3, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 36893-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ANTONIO CANTU, ) ) Appellant. ) LAWRENCE-BERREY, J. — Antonio Cantu appeals his convictions for bail jumping, taking a motor vehicle without permission, and driving under the influence. We accept the State’s concessions—Cantu’s bail jumping conviction should be dismissed and his offender score was miscalculated—and remand for resentencing. We otherwise affirm. FACTS Based on events in September 2017, the State charged Cantu with taking a motor vehicle without permission in the second degree, driving under the influence, and driving with a suspended license in the third degree. Cantu failed to appear at an omnibus hearing on June 5, 2018, and the court issued a bench warrant. The State then amended the information to add a charge of bail jumping. No. 36893-9-III State v. Antonio Cantu Jury selection During the trial court’s voir dire, the court asked general questions to potential jurors and asked them to raise their paddle to indicate a yes answer. Venire juror 21’s profile revealed he currently was a sergeant with the City of Moses Lake Police Department. He raised his paddle to a number of questions. For instance, he answered he had heard of the case, but said what he had heard would not unduly influence him. He also answered he knew both counsel, several witnesses, had been involved in a similar case as a witness or investigator, had friends or family involved in a similar case, was involved with a law enforcement agency, and had a close friend or family member involved with a law enforcement agency. The parties then questioned venire juror 21 outside the presence of the potential jurors. He acknowledged he had previously supervised, currently worked with, and would supervise again three of the officers who were witnesses in the case. He said that he had met Cantu in the past, but could not remember where. When asked whether he would have any prejudice against Cantu because of this, he answered: “Like I said, name and kind of facial recognition, but I can’t put it to any case or any of that.” Report of Proceedings (June 5, 2019) (Voir Dire) (RP) at 58-59. 2 No. 36893-9-III State v. Antonio Cantu Defense counsel then asked: [Defense]: Why do you think jury trials are important? JUROR NO. 21: I think it’s important for the Defendant to get his—his time in court so the evidence is heard. If they’re claiming that they’re innocent of the charges, evidence needs to be presented so that the truth . . . . .... [DEFENSE]: . . . You said “claiming” there. Aren’t they presumed innocent? JUROR NO. 21: Well, I would say that would be the one issue for me as my role is I believe everybody is innocent, however when I arrest somebody for a crime, I’m working off the—as soon as evidence is proved that—proves my case to me, that’s why I’m arresting, right? And so coming in here, I struggle. I believe that he’s innocent until proven guilty and I believe the trial has got to go forward. And if the evidence doesn’t convict, I have no problem saying that he’s not guilty. But it’s hard for me to say once you’re arrested and in that seat it’s—does that make sense to you? [DEFENSE]: It kind of does. So what I understand you’re saying is that if you believe you have probable cause to arrest somebody, they’re basically guilty and they don’t get a doubt in your mind. It’s very hard to get that back in your mind. JUROR NO. 21: Not—yeah. Yeah. I’ll be honest. Yeah. [DEFENSE]: Okay. Shouldn’t they continue to have that doubt no matter what? JUROR NO. 21: They should. They should. And—and I’m talking from my perspective from my case. I don’t know in his case what he’s done, so I’d have to see all that information . . . . [DEFENSE]: Right now he hasn’t done anything. JUROR NO. 21: Exactly. .... [DEFENSE]: So right now— .... [DEFENSE]: —guilty or not guilty? JUROR NO. 21: He’s innocent. 3 No. 36893-9-III State v. Antonio Cantu RP at 101-03. Defense counsel later asked: “[Are] you on the fence?” RP at 104. Venire juror 21 replied, “No, I’m not on the fence. . . . I’m right down the middle. . . . I’m on the innocent until proven guilty fence.” RP at 104. The parties also questioned venire juror 18 outside the presence of the potential jurors. She had earlier indicated she wanted to attend a sixth grade graduation for her stepson and might be upset and distracted if she were selected for the jury. Defense counsel asked: [DEFENSE]: So if you don’t get to go [to the graduation], is that upset going to make it hard for you to remain neutral and use just the facts in this case? JUROR NO. 18: I don’t think so. [DEFENSE]: You don’t think so? Do you think it would influence your decision in any way? JUROR NO. 18: I’m not sure. THE COURT: When you say you’re not sure, you’re not sure what he means or— JUROR NO. 18: No, I’m not sure what he’s— THE COURT: Okay. [DEFENSE]: So let me rephrase. You said you would be upset if you didn’t get to go to the graduation? JUROR NO. 18: Yes. [DEFENSE]: Okay. If you were upset, would you be able to still sit on this jury and be neutral, not hold that upset against anybody here in the courtroom? JUROR NO. 18: I don’t think so. .... [DEFENSE]: Okay. What if the Judge told you had to? JUROR NO. 18: (inaudible)—I guess. 4 No. 36893-9-III State v. Antonio Cantu .... JUROR NO. 18: Go with the flow. .... [DEFENSE]: What do you mean by that? JUROR NO. 18: Well, I can’t do anything about it. I— [DEFENSE]: Okay. .... [DEFENSE]: But in the back of your mind do you think that your being upset for not going to the graduation would influence how you might view the evidence presented in this case? JUROR NO. 18: I think I would have trouble concentrating. .... [DEFENSE]: You may be distracted? JUROR NO. 18: Yes. [DEFENSE]: Okay. If you were distracted, do you think you could be fair as a juror? JUROR NO. 18: I don’t think so. .... THE COURT: Finally, there’s some question about you being distracted. Do you think you’d be distracted? JUROR NO. 18: Yeah, a little bit because, I mean, I would be thinking of him, you know. THE COURT: Okay. Well, yeah. And it’s at 1:30, is the graduation? JUROR NO. 18: Yeah. THE COURT: Do you think when we start back here at 1:30 and there’s questions, you wouldn’t be able to answer those questions? JUROR NO. 18: I would be answering them, yeah. THE COURT: Okay. The trial won’t start until later today where there’s actual testimony or tomorrow. You won’t be distracted at that point, will you? JUROR NO. 18: No. THE COURT: Okay. And you’ll be able to answer all the questions? JUROR NO. 18: Yeah. 5 No. 36893-9-III State v. Antonio Cantu RP at 49-52. The court noted that it normally rules on hardship without argument, but allowed counsel to weigh in this time. The defense asked the court to excuse venire juror 18 for hardship. After a brief conversation about venire juror 18’s statements, the court declined to excuse venire juror 18. The trial court recommended that venire jurors 3, 5, and 15 be excused for bias due to close relationships with Cantu and some witnesses. Five additional venire jurors were dismissed for cause. Defense counsel used five of his six peremptory challenges, yet allowed venire jurors 18 and 21 to be seated on the jury. Bail jumping evidence and jury instruction The State called Miranda Pratt, who worked at the Grant County Clerk’s Office as a deputy clerk and records custodian in 2018. Ms. Pratt testified that Cantu’s omnibus hearing was scheduled for June 5, 2018, and that Cantu was not in court for that hearing. The State presented no other evidence to support the bail jumping charge. With respect to that charge, the court instructed the jury: To convict the defendant of bail jumping, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about June 5, 2018 the defendant failed to appear before a court; (2) That the defendant was charged with a crime under RCW 9A.56.075, Taking a Motor Vehicle without Permission in the Second Degree, a Class C Felony; 6 No. 36893-9-III State v. Antonio Cantu (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before the court; and (4) That any of these acts occurred in the State of Washington. Clerk’s Papers at 336 (emphasis added). Jury’s verdicts and court’s sentencing The jury found Cantu guilty of taking a motor vehicle without permission, driving under the influence, and bail jumping. It found Cantu not guilty of driving with a suspended license. At sentencing, the trial court calculated Cantu’s offender score. Cantu’s juvenile court criminal history reflected three class B felonies (2002 second degree assault, 2002 second degree burglary, and 2003 residential burglary) and one class C felony (2003 attempted residential burglary). Cantu’s adult court criminal history reflected one class B felony (2007 first degree theft) and three class C felonies (2006 second degree theft, 2006 third degree assault, and 2009 riot while armed). The judgment noted that Cantu’s three adult class C felonies had washed out, implying that Cantu did not commit any crimes during the five years after he completed his 2009 felony sentence. The trial court calculated Cantu’s offender score as a 4 for both of Cantu’s current felony convictions. Based on this score, the court entered a concurrent sentence of 12 months for bail jumping and 5 months for taking a motor vehicle without permission. 7 No. 36893-9-III State v. Antonio Cantu Cantu appealed. ANALYSIS Cantu raises three argument on appeal: (1) denial of his right to a fair trial due to juror bias, (2) insufficient evidence to support his bail jumping conviction, and (3) error in calculating his offender score. NO ERROR FOR NOT EXCUSING TWO VENIRE JURORS Cantu contends he was denied his constitutional right to a fair trial because the trial court did not excuse venire jurors 21 and 18. We address the applicable legal standards below. Both the federal and state constitutions “guarantee a criminal defendant the right to trial by an impartial jury.” State v. Davis, 175 Wash. 2d 287 , 312, 290 P.3d 43 (2012). Seating a biased juror violates this right. In re Pers. Restraint of Yates, 177 Wash. 2d 1 , 30, 296 P.3d 872 (2013). A trial judge has discretion to excuse a juror for cause if the juror’s views would “‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412 , 424, 105 S. Ct. 844 , 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38 , 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)). A judge has an obligation to excuse a biased juror even if neither party challenges the prospective juror for cause. State v. Guevera Diaz, 8 No. 36893-9-III State v. Antonio Cantu 11 Wash. App. 2d 843, 855, 456 P.3d 869 , review denied, 195 Wash. 2d 1025 , 466 P.3d 772 (2020). We presume jurors are impartial and qualified to sit on a particular case; otherwise, they would have been challenged for cause. State v. Latham, 30 Wash. App. 776 , 781, 638 P.2d 592 (1981), aff’d, 100 Wash. 2d 59 , 667 P.2d 56 (1983). Because “the trial court is in the best position to determine a juror’s ability to be fair and impartial,” we review juror challenges for manifest abuse of discretion. State v. Noltie, 116 Wash. 2d 831 , 839, 809 P.2d 190 (1991). Actual bias is “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” RCW 4.44.170(2). Actual bias is a ground for challenging a juror for cause. Id. The mere fact that a juror has formed or expressed an opinion is not, in itself, sufficient to sustain a challenge for actual bias; rather, “the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” RCW 4.44.190. A party claiming actual bias must establish it by proof, showing more than a possibility of prejudice. Noltie, 116 Wash. 2d at 838 ; State v. Munzanreder, 199 Wash. App. 162 , 176, 398 P.3d 1160 (2017). 9 No. 36893-9-III State v. Antonio Cantu Implied bias may exist when a juror stands in the relation of master and servant to a party or has an interest in the action beyond that of an ordinary citizen. RCW 4.44.180(2). A defendant is entitled to a new trial due to a juror’s implied bias in certain exceptional circumstances. State v. Boiko, 138 Wash. App. 256 , 260-61, 156 P.3d 934 (2007). In the absence of intentional concealment of information, a court—in exceptional cases—may draw a presumption of implied bias from a juror’s factual circumstances. Id. at 261-62 (quoting State v. Cho, 108 Wash. App. 315 , 325, 30 P.3d 496 (2001)). But “[a] relationship with the government, without more, does not establish bias.” Cho, 108 Wash. App. at 324 (citing Dennis v. United States, 339 U.S. 162 , 70 S. Ct. 519 , 94 L. Ed. 734 (1950)). Division Two of this court has addressed a trial judge’s mandatory duty to excuse a juror. In State v. Lawler, 194 Wash. App. 275 , 287-89, 374 P.3d 278 (2016), the trial court did not sua sponte dismiss a juror for alleged bias. The juror in question indicated he would have difficulty remaining objective due to past experiences, it “‘would be a pain in the neck’” to follow the court’s instructions, and he would be uncomfortable serving on the jury. Id. at 279-80. Neither party nor the judge followed up on this juror’s responses. Id. at 280. The trial court discussed its concerns about fairness and suggested two jurors 10 No. 36893-9-III State v. Antonio Cantu be dismissed. Id. Lawler exercised five of his six peremptory challenges, but did not strike the juror in question. Id. The jury found Lawler guilty, and he appealed. Id. Division Two held that the trial court did not abuse its discretion in failing to excuse the juror. Id. at 289. In so holding, it relied on several factors. First, the trial court is in the best position to evaluate a juror’s ability to be fair and impartial. Id. at 282 (citing Noltie, 116 Wash. 2d at 839 ). Second, the juror’s answers were slightly equivocal, rather than “‘unqualified statement[s] expressing actual bias.’” Id. at 286 (quoting State v. Irby, 187 Wash. App. 183 , 188, 347 P.3d 1103 (2015)). Third, the trial court was alert to the possibility of biased jurors—it paid close attention during voir dire and expressed concerns about several potential jurors. Id. at 287-88. Fourth, defense counsel was also aware of the possibility of biased jurors: it moved to excuse two other jurors for cause. Id. at 288. Fifth, Lawler did not use all of his peremptory challenges. Id. And sixth, the trial court appropriately refrained from interfering with a defendant’s jury selection strategy. Id. With respect to this last factor, Division Two recognized there may have been legitimate tactical reasons not to challenge a juror, and “‘the Sixth Amendment [to the United States Constitution] recognizes the defendant’s right to control important strategic decisions.’” Id. at 285 (quoting State v. Coristine, 177 Wash. 2d 370 , 376, 300 P.3d 400 (2013)). 11 No. 36893-9-III State v. Antonio Cantu We utilize these factors in evaluating whether the trial court manifestly abused its discretion by not sua sponte excusing venire jurors 21 and 18. Venire juror 21 Cantu contends venire juror 21 expressed actual bias during voir dire and his position as a police sergeant showed implied bias. We disagree. First, it is well settled that the trial court is in the best position to evaluate juror fitness. The court observed the demeanor of jurors during voir dire and agreed with the defense that venire juror 21 should be questioned individually. The court confirmed that venire juror 21’s ability to render impartial judgment would not be impacted by prior contacts with Cantu and asked whether venire juror 21 would give more weight to the State’s witnesses because he knew them. The court was satisfied with his answers, and we generally defer to the trial court’s decision in this regard. Second, venire juror 21’s answers were equivocal: he admitted he thought the people he arrested were guilty, but left open the possibility of innocence for others. He acknowledged Cantu was innocent until proved guilty and explained his belief that jury trials are important for truth finding. Venire juror 21’s answers reflect a seriousness about the important role a juror serves in criminal proceedings. 12 No. 36893-9-III State v. Antonio Cantu Third and fourth, both the trial judge and defense counsel were alert to the possibility of bias. Several jurors were individually questioned on that basis. The court dismissed three venire jurors based on close relationships with the parties and two others for their inability to be fair and impartial. The record shows that the court and parties were cognizant of bias in the venire and acted to eliminate the risk. Fifth, and importantly, Cantu had an unused peremptory challenge. We presume that defense counsel had a legitimate strategic reason for allowing venire juror 21 to remain on the jury; otherwise, Cantu would have used his remaining peremptory strike. Finally, we agree that a trial judge should refrain from interfering with counsel’s strategy during jury selection. A trial court may legitimately be less willing to exercise its discretion to dismiss a juror sua sponte than to grant a challenge for cause. Lawler, 194 Wash. App. at 288 . The defense did not challenge venire juror 21 for cause and a sua sponte dismissal may have violated Cantu’s Sixth Amendment right of control over his defense. State v. Lynch, 178 Wash. 2d 487 , 491, 309 P.3d 482 (2013). We conclude the trial court did not manifestly abuse its discretion by not dismissing venire juror 21 for actual bias. We also are unconvinced that venire juror 21’s supervisory position over three law enforcement witnesses, by itself, was a sufficient reason to dismiss for implied bias. We 13 No. 36893-9-III State v. Antonio Cantu have previously determined there is nothing inherent in the status of being a police officer that would support a finding of implied bias in a criminal case. See Cho, 108 Wash. App. at 324 . Being a supervisor to police officer witnesses, as opposed to an officer of equal or lesser rank, reduces the real or perceived pressure to side with officer witnesses. We conclude the trial court did not manifestly abuse its discretion by not sua sponte dismissing venire juror 21 for implied bias. Venire juror 18 Cantu contends venire juror 18 was erroneously empaneled because she told the court she would have trouble concentrating if she missed her stepson’s graduation. We disagree. Venire juror 18 originally said she would find it hard to concentrate if she missed the graduation. Follow-up questions outside the presence of potential jurors made it clear the graduation was that day at 1:30 p.m., and the trial would not start until after the graduation was over. Ultimately, venire juror 18 assured the court she could answer questions even when jury selection resumed at 1:30 p.m. Notably, there is no evidence that venire juror 18 had any difficulty answering questions that afternoon. We conclude the trial court did not manifestly abuse its discretion by denying Cantu’s request to dismiss venire juror 18 for hardship. 14 No. 36893-9-III State v. Antonio Cantu INSUFFICIENT EVIDENCE TO SUSTAIN BAIL JUMPING CONVICTION Cantu contends, and the State concedes, that the evidence was insufficient to support the bail jumping conviction because the State failed to produce any evidence that Cantu was released by a court order. We accept the State’s concession and reverse Cantu’s bail jumping conviction. OFFENDER SCORE Cantu contends his offender score was miscalculated because the trial court counted his 2003 conviction for attempted residential burglary, despite that conviction having washed out. The State concedes this issue and asks us to remand for resentencing with a corrected score. For the reasons explained below, we accept the State’s concession. An offender score calculation is reviewed de novo. State v. Mutch, 171 Wash. 2d 646 , 653, 254 P.3d 803 (2011). To properly calculate a defendant’s offender score, the trial court must determine a defendant’s criminal history based on prior convictions under the statutory formula provided in RCW 9.94A.525. State v. Schwartz, 194 Wash. 2d 432 , 438, 450 P.3d 141 (2019). When calculating an offender score for a present, nonviolent conviction, the trial court adds 1 point for each adult prior felony conviction, 1 point for each juvenile prior 15 No. 36893-9-III State v. Antonio Cantu violent felony conviction, and one-half point for each juvenile prior nonviolent felony conviction. RCW 9.94A.525(7). A class C prior felony conviction “washes out” and is exempted from the offender score calculation if the offender has been crime free for five consecutive years after release from confinement or entry of judgment and sentence. RCW 9.94A.525(2)(c). The wash-out period need not immediately follow the prior conviction. Schwartz, 194 Wash. 2d at 445 . Cantu’s adult prior felony score is 1 because of his 2007 first degree theft conviction. Cantu’s juvenile prior felony score is 2, calculated as follows: 1 point for second degree assault, a violent offense (see RCW 9.94A.030(55)(a)(viii)), plus one-half point for second degree burglary, and one-half point for residential burglary. The State correctly concedes that Cantu’s 2003 attempted residential burglary is a class C felony. This is because residential burglary is a class B felony, RCW 9A.52.025(2), and a person commits a class C felony if they are convicted of attempting to commit a class B felony. RCW 9A.28.020(3)(c). The State also correctly concedes that this conviction, similar to Cantu’s other class C convictions, should have washed out. Adding Cantu’s adult prior felony score of 1 to his juvenile prior felony score of 2 totals 3. 16 No. 36893-9-111 State v. Antonio Cantu We remand for the trial court to dismiss the bail jumping conviction with prejudice and to resentence Cantu with a corrected offender score consistent with this opinion. A corrected offender score may include evidence of additional convictions. See State v. Cobos, 178 Wash. App. 692 , 700-01, 315 P.3d 600 (2013), ajf'd, 182 Wn.2d 12,338 P.3d 283 (2014). A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Lawrence-Berrey, J. \ j WE CONCUR: Pennell, C.J. JI..., ' c....... .,J 17

2020-12-03 19:00:25.913788+00

http://www.ca5.uscourts.gov/opinions/unpub/20/20-10283.0.pdf

Case: 20-10283 Document: 00515659589 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 20-10283 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Robert Earl Ramseur, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-65-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Robert Earl Ramseur appeals the $141,419.04 restitution award imposed on remand from United States v. Ramseur, 793 F. App’x 245 (5th Cir. 2019), pursuant to his conviction for willfully assisting the preparation of false income tax returns. The district court originally ordered $399,400 in * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-10283 Document: 00515659589 Page: 2 Date Filed: 12/03/2020 No. 20-10283 restitution, but we held that included amounts beyond the tax returns for which he was convicted and failed to account for tax payments made by some of Ramseur’s’ clients on returns that were the basis for his convictions. See id. at 249. Ramseur now challenges the new, reduced restitution order on the ground that it exceeds the Internal Revenue Service’s actual loss from the offenses of conviction. The issue whether a restitution award is illegal is reviewed de novo, and the amount of the restitution award is reviewed for abuse of discretion. United States v. Arledge, 553 F.3d 881 , 897 (5th Cir. 2008). The amount of a victim’s restitution award must be tied to only the loss that directly resulted from the offense of conviction; the gain to the defendant on account of his illegal conduct is not relevant to the calculation of the restitution award. Id. at 899. Citing United States v. Tawil, 40 F. App’x 531 (9th Cir. 2002), Ramseur argues that the restitution award should be reduced by $24,113 that was erroneously deposited by the IRS into the accounts of three taxpayers against whom the IRS has not sought a refund. Tawil, which is factually distinguishable, is not persuasive because there was no evidence in that case that the defendants’ scheme caused the full amount of the loss at issue. See 40 F. App’x at 533, 535. In contrast, Ramseur’s acts of conviction caused the entire $141,419.04 loss to the IRS, regardless of the amount he personally received or from which he benefitted. See Arledge, 553 F.3d at 899 . The restitution award therefore is neither illegal nor an abuse of discretion. See id. at 897-99. AFFIRMED. 2

2020-12-03 19:00:26.362426+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-41011.0.pdf

Case: 19-41011 Document: 00515659372 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 19-41011 Lyle W. Cayce Summary Calendar Clerk Mark Cliff Schwarzer, Plaintiff—Appellant, versus Dale Wainwright, Chairman of the Board of Criminal Justice; Robert G. Beard, Jr., Former Warden of Stevenson Unit; Pamela R. Mendez-Banda, Unit Mailroom Employee; Bryan Collier, Executive Director, Texas Department of Criminal Justice; Jennifer Smith, DRC Program Supervisor, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 6:18-CV-34 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-41011 Document: 00515659372 Page: 2 Date Filed: 12/03/2020 No. 19-41011 Mark Cliff Schwarzer, Texas prisoner # 1433741, appeals the dismissal of his 42 U.S.C. § 1983 complaint and the denial of his Federal Rule of Civil Procedure 59(e) motion to alter judgment. However, the issues Schwarzer raises on appeal concern the dismissal of his § 1983 action rather than the denial of his Rule 59(e) motion. As a threshold matter, this court “must examine the basis of its jurisdiction, on its own motion if necessary.” Mosley v. Cozby, 813 F.2d 659 , 660 (5th Cir. 1987). A timely notice of appeal in a civil case is a jurisdictional prerequisite. See Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13 , 17 (2017). Schwarzer’s Rule 59(e) motion was entered on the district court’s docket on November 4, 2019, which was after the October 30, 2019, deadline for filing the motion. See Fed. R. Civ. P. 59(e). However, under the prison mailbox rule, Schwarzer’s Rule 59(e) motion is deemed filed on the date it was placed in the prison’s mail system. See Stoot v. Cain, 570 F.3d 669 , 671 (5th Cir. 2009). The motion was dated October 30, 2019, but the record does not reveal when Schwarzer deposited it in the mail. It is therefore unclear whether his Rule 59(e) motion was timely filed. As a result, on the present record, this court cannot determine whether it has jurisdiction to review the underlying dismissal of Schwarzer’s § 1983 complaint. See Fed. R. App. P. 4(a)(4)(A). Accordingly, we hold the appeal in abeyance and remand for the limited purpose of determining when Schwarzer placed his Rule 59(e) motion in the prison mail system. See Thompson v. Montgomery, 853 F.2d 287 , 288 (5th Cir. 1988). APPEAL HELD IN ABEYANCE; LIMITED REMAND. 2

2020-12-03 19:00:26.78226+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-60308.0.pdf

Case: 19-60308 Document: 00515659685 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 19-60308 Lyle W. Cayce Clerk Kamaluddin Nikpay, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A216 286 243 Before Clement, Ho, and Duncan, Circuit Judges. Per Curiam:* Kamaluddin Nikpay petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) to deny Nikpay’s application for asylum, humanitarian asylum, and protections under the Convention Against Torture (“CAT”). He challenges the BIA’s findings, contending that he made the requisite * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60308 Document: 00515659685 Page: 2 Date Filed: 12/03/2020 No. 19-60308 showings for the BIA to conclude that he would be persecuted and tortured if he returned to Afghanistan. For the following reasons, we deny the petition for review. I. Kamaluddin Nikpay, a native and citizen of Afghanistan, entered the United States on an A-2 visa in 2018 to participate in a Defense Language Institute (“DLI”) program in San Antonio, Texas. At the time, Nikpay was a member of the Afghan Air Force. During his participation in the program, he asked another servicemember to join him in going absent without leave (“AWOL”), and the servicemember subsequently reported him to the authorities. When confronted, Nikpay refused to return to Afghanistan and stated that, if forced to return, he would “[r]un away or bring the aircraft down.” Following an investigation, Nikpay was disenrolled from the DLI program—which terminated his A-2 visa—and arrested. Shortly thereafter, he was served with a Notice to Appear, which charged him with removability. 1 Nikpay sought asylum, humanitarian asylum, withholding of removal, and CAT protection, contending that—if forced to return to Afghanistan—he feared harm by the Taliban and Afghan government. The IJ denied Nikpay’s requests for relief and ordered that he be removed. Nikpay appealed the IJ’s decision to the BIA. 2 Agreeing with the IJ, the BIA determined that Nikpay failed to demonstrate that he suffered past 1 The Notice to Appear is not included in the administrative record. However, the parties do not dispute—and the record reflects—that Nikpay was charged with removability. 2 Nikpay did not appeal the IJ’s decision to deny his withholding of removal claim. Although the BIA affirmed the IJ’s conclusion on this issue anyway, Nikpay has not 2 Case: 19-60308 Document: 00515659685 Page: 3 Date Filed: 12/03/2020 No. 19-60308 persecution in Afghanistan or had an independent, well-founded fear of future persecution. Accordingly, it also concluded that Nikpay did not qualify for a humanitarian grant of asylum. Finally, it affirmed the IJ’s finding that Nikpay failed to prove he would more likely than not be tortured “by or with the consent or acquiescence . . . of Afghan officials or other individuals acting in an official capacity upon his repatriation.” Thus, the BIA dismissed Nikpay’s appeal. Nikpay then brought this petition, claiming the BIA erred in its review of the IJ’s decision. We affirm and deny Nikpay’s petition for review. II. “Our review encompasses both ‘the BIA’s decision and . . . the IJ’s decision to the extent that it influenced the BIA.’” Morales v. Sessions, 860 F.3d 812 , 815 (5th Cir. 2017) (alteration in original) (quoting Shaikh v. Holder, 588 F.3d 861 , 863 (5th Cir. 2009)). Whether an alien is eligible for asylum and CAT protection is reviewed under the substantial evidence standard. See Chen v. Gonzales, 470 F.3d 1131 , 1134–41 (5th Cir. 2006). Under the substantial evidence standard, the evidence must not only support, but must also compel, a contrary conclusion for reversal to be proper. Id. at 1134 (citation omitted). The burden falls on the petitioner to demonstrate the evidence is so compelling that “no reasonable factfinder could reach a contrary conclusion.” Id. (citation omitted). A. To successfully obtain asylum, an alien must demonstrate that he is a refugee, and that he has a well-founded fear of persecution based upon his challenged the decision below with respect to his withholding of removal claim, and we will not address this issue. 3 Case: 19-60308 Document: 00515659685 Page: 4 Date Filed: 12/03/2020 No. 19-60308 race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1158(b). He may show the latter by proving he was a victim of past persecution or possesses a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). “Past persecution entails harm inflicted on the alien on account of a statutorily enumerated ground by the government or forces that a government is unable or unwilling to control.” Tesfamichael v. Gonzales, 469 F.3d 109 , 113 (5th Cir. 2006) (citing 8 C.F.R. § 1208.13(b)(1)). A showing of past persecution entitles an alien to a presumption of future persecution, 8 C.F.R. § 208.16(b)(1)(i); otherwise, to demonstrate a well-founded fear of future persecution, an alien must show that “a reasonable person in the same circumstances would fear persecution if deported,” Orellana-Monson v. Holder, 685 F.3d 511 , 518 (5th Cir. 2012) (Clement, J.) (quoting Jukic v. INS, 40 F.3d 747 , 749 (5th Cir. 1994)). “Persecution includes the infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive in a manner condemned by civilized governments.” Id. (cleaned up). Successfully demonstrating persecution requires a showing of “specific, detailed facts.” Faddoul v. INS, 37 F.3d 185 , 188 (5th Cir. 1994) (citation omitted). Nikpay claims that he was persecuted based upon his Hazara ethnicity and Shia Imami Ismaili religion, and that he has a well-founded fear of persecution in the future based upon his (1) Hazara ethnicity; (2) Shia Imami Ismaili religion; and (3) status as an “Afghani military member who [is] perceived to have deserted the military.” 3 He focuses on three examples to establish that he was persecuted in the past. 3 Prior to this petition, the record also characterized “his political opposition to the Taliban and pro-Afghani government political opinion” as a basis upon which he fears persecution and torture. It does not appear that Nikpay alleges his political opposition to the Taliban as an independent ground; rather, he seems to contend that the Taliban will 4 Case: 19-60308 Document: 00515659685 Page: 5 Date Filed: 12/03/2020 No. 19-60308 Nikpay first contends that he suffered persecution when he fled to the mountains in fear of the Taliban as a child. Yet, his claim is undermined by the fact that he ultimately returned to his village, completed school, and joined the Afghan military. See, e.g., Maknojiya v. Holder, 524 F. App’x 956, 957–58 (5th Cir. 2013) (per curiam) (holding that substantial evidence supported a finding that, where he was ordered to move to Pakistan, thrown to the ground, threatened, and his cars and grain were destroyed—the alien had not been persecuted on the basis of his religion because he and his family continued to live in the area, he worked for “nearly seven years after the attack without encountering the attackers,” and his family continues to live in the nation without threats). Second, Nikpay asserts that an instance of prior physical abuse he suffered from the Taliban, and its threats against his life, suffice to establish past persecution. However, although he was tied up, Nikpay was not hospitalized nor did this incident result in permanent injury. See Eduard v. Ashcroft, 379 F.3d 182 , 188 (5th Cir. 2004) (holding petitioner failed to establish past persecution where he sustained cuts on his head after he had been hit in the head with a rock); see also Li v. Holder, 579 F. App’x 225, 226 (5th Cir. 2012) (per curiam) (“The mistreatment described by Li did not result in any permanent injury, hospitalization, or significant detention . . . . [and did] not rise to the level of the extreme conduct necessary to compel a finding of past persecution.”) (citations omitted); Abdel-Masieh v. INS, 73 F.3d 579 , 584 (5th Cir. 1996) (holding that the BIA did not err in finding that Abdel did not suffer past persecution and considering in this determination that the beatings he received were not characterized as “severe”). Furthermore, the threat he received was a single, indirect threat that persecute and torture him on account of the other three bases. We will address whether Nikpay has adequately challenged the Taliban’s status as a private actor, see infra pp. 6–7. 5 Case: 19-60308 Document: 00515659685 Page: 6 Date Filed: 12/03/2020 No. 19-60308 apparently came while he was in the United States. See Morales, 860 F.3d at 816 (stating that a single threat does not constitute persecution). Finally, Nikpay’s allegation that he suffered persecution while in the military is belied by the fact that he was later selected to attend the DLI training program. On none of these three bases did Nikpay present such compelling evidence that “no reasonable factfinder could reach a contrary conclusion.” Chen, 470 F.3d at 1134 (citation omitted). The substantial evidence supports the BIA’s finding that he failed to establish he suffered past persecution. Because Nikpay did not establish that he suffered past persecution, he was not entitled to a presumption of future persecution. 8 C.F.R. § 208.16(b)(1)(i). Nikpay contends that he is at risk of being persecuted by either or both of two entities: the Taliban and the Afghan government. The substantial evidence does not support a finding for Nikpay with respect to either contention. An asylum applicant is not required to provide evidence that there is a reasonable possibility that he would be singled out individually for persecution; he may instead show that there is a pattern or practice in his home country of persecuting similarly situated individuals. See 8 C.F.R. § 1208.13(b)(2)(iii). However, although Nikpay adduces evidence indicating that the Taliban has targeted Hazaras in the past, Nikpay does not show that the Taliban has a pattern or practice of persecuting Hazaras. The Afghan government’s failure to suppress all violence caused by the Taliban does not support a conclusion that it is unable or unwilling to do so. See Gonzales-Veliz v. Barr, 938 F.3d 219 , 231 (5th Cir. 2019) (“An applicant seeking to establish persecution based on violent conduct of a private actor must show more than difficulty controlling private behavior.” (cleaned up)); see also Katembo v. Barr, 825 F. App’x 225, 226 (5th Cir. 2020) (per curiam) (applying the 6 Case: 19-60308 Document: 00515659685 Page: 7 Date Filed: 12/03/2020 No. 19-60308 “unable or unwilling” standard to whether petitioner established a credible fear of persecution). Therefore, we need not consider Nikpay’s claims of persecution with respect to the Taliban. 4 The remaining evidence—that adduced by Nikpay in support of his claim of future persecution at the hands of the Afghan government—is inapposite. He cites a report by the United Nations Assistance Mission in Afghanistan (“UNAMA”), but the majority of detainees who were interviewed in the report indicated that they were tortured to induce a confession. Nikpay has suggested no reason that the Afghan government would seek a confession of any sort during his potential imprisonment. Moreover, the UNAMA report “focused primarily on conflict-related detainees,” which—as an alleged deserter—Nikpay is not. The BIA’s decision that Nikpay has not demonstrated an independent, well-founded fear of future persecution and ultimate conclusion that Nikpay is ineligible for asylum are supported by substantial evidence. Finally, Nikpay contends that the BIA fails to point to any particular facts in its opinion. But the BIA “does not have to write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Efe v. Ashcroft, 293 F.3d 899 , 908 (5th Cir. 2002) (Clement, J.) (citation omitted). The BIA did so here. 4 To the extent that Nikpay argues that the Taliban is a quasi-official group, cf. United States v. Hamidullin, 114 F. Supp. 3d 365 , 379 (E.D. Va. 2015) (Hudson, J.) (considering the Taliban’s status as a governing authority), we lack jurisdiction to entertain his claim because it was not exhausted before the BIA, see Claudio v. Holder, 601 F.3d 316 , 318 (5th Cir. 2010) (citations omitted). 7 Case: 19-60308 Document: 00515659685 Page: 8 Date Filed: 12/03/2020 No. 19-60308 Additionally, because Nikpay “fails to show that [he] suffered past persecution on account of a protected ground, [he] necessarily fails to show that the BIA erred in holding that [he] is not entitled to humanitarian asylum.” Alvarado-Velasquez v. Sessions, 722 F. App’x 365, 366 (5th Cir. 2018) (per curiam); see Singh v. Barr, 818 F. App’x 331, 335 (5th Cir. 2020) (per curiam) (citation omitted); see also Shehu v. Gonzales, 443 F.3d 435 , 440– 41 (5th Cir. 2006) (concluding that the evidence did not compel a determination that Shehu was entitled to humanitarian asylum after finding that she failed to demonstrate she had suffered past persecution). Thus, the BIA did not abuse its discretion in denying Nikpay’s request for humanitarian asylum. B. Pursuant to CAT, the United States may not remove an alien to a country in which he is more likely than not to be tortured. 8 C.F.R. § 1208.16(c)(4). “‘Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’ by a public official, at the instigation of a public official, with the consent of a public official, or with the acquiescence of a public official.” Morales, 860 F.3d at 818 (quoting Roy v. Ashcroft, 389 F.3d 132 , 140 (5th Cir. 2004)). Specifically, the BIA held that Nikpay “failed to meet his burden of proving that he himself will more likely than not face torture upon his repatriation.” Nikpay’s contention that he will be tortured is predicated on what he has been told about Afghan prisons. But he fails to distinguish his case from others in which courts have determined that unsatisfactory prison conditions are insufficient to warrant CAT protection. See, e.g., Robert v. Ashcroft, 114 F. App’x 615, 617 (5th Cir. 2004) (per curiam) (relying on In re J-E-, 23 I. & N. 291, 296 (BIA 2002) (en banc), overruled on other grounds by 8 Case: 19-60308 Document: 00515659685 Page: 9 Date Filed: 12/03/2020 No. 19-60308 Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)). Instead, he asserts that the IJ’s credibility finding is dispositive. Nikpay is mistaken. See, e.g., Guardado v. Holder, 553 F. App’x 459, 460 (5th Cir. 2014) (per curiam) (reviewing decisions by the BIA and IJ, in which the IJ found the appellant credible, and nonetheless determining that the evidence did not compel a contrary result). Furthermore, Nikpay conveniently omits the fact that some measure of prosecution, fine, or imprisonment by the Afghan government would constitute lawful criminal sanctions for his decision to desert the military. Cf. Milat v. Holder, 755 F.3d 354 , 361 (5th Cir. 2014) (holding that “punishment for violation of conscription laws of general applicability does not in itself constitute ‘persecution’ on account of political opinion . . . .”). Thus, he fails to demonstrate that the evidence would compel a reasonable factfinder to reach a different conclusion than the BIA. Substantial evidence supports the BIA’s denial of Nikpay’s CAT claim. The petition for review is DENIED. 9

2020-12-03 19:00:27.252388+00

http://www.ca5.uscourts.gov/opinions/pub/20/20-50323-CV0.pdf

Case: 20-50323 Document: 00515659541 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 20-50323 Lyle W. Cayce Clerk Future Proof Brands, L.L.C., Plaintiff—Appellant, versus Molson Coors Beverage Company, formerly known as Molson Coors Brewing Company; MillerCoors, L.L.C., Defendants—Appellees. Appeal from the United States District Court for the Western District of Texas No. 1:20-CV-144 Before Higginbotham, Smith, and Dennis, Circuit Judges. Jerry E. Smith, Circuit Judge: Future Proof Brands, L.L.C. (“Future Proof”) and Molson Coors (“Coors”) sell competing hard seltzer beverages. Future Proof named its seltzer “Brizzy.” Coors chose “Vizzy.” Future Proof sued Coors for trade- mark infringement, claiming that consumers would confuse Vizzy and Brizzy. The district court denied Future Proof’s motion for a preliminary injunction. Finding no abuse of discretion, we affirm. Case: 20-50323 Document: 00515659541 Page: 2 Date Filed: 12/03/2020 No. 20-50323 I. Hard seltzers are alcoholic beverages that contain carbonated water, alcohol, and—in most cases—fruit flavors, and that have enjoyed skyrocket- ing popularity in the United States. 1 Many alcoholic-beverage makers have rushed to capitalize on that trend, releasing their own lines of hard seltzers. Future Proof and Coors are two such competitors. Both named their hard seltzers with a variation of the word “fizzy.” Future Proof styles Brizzy as a “seltzer cocktail” and sells 12-packs at retail for $14.99 in four states. Future Proof registered its BRIZZY mark with the United States Patent and Trademark Office (“USPTO”) in 2019. Coors branded Vizzy by amalgamating its two “most prominent attributes: Vitamin C and fizzy.” Future Proof contends that Coors knew about Brizzy by the time it began marketing Vizzy and that a wholesaler once asked a Future Proof employee about Vizzy instead of Brizzy. Neither company was the first to have the inspiration to brand a car- bonated product with a variant of “fizzy.” Other products include Malibu’s “FIZZY PINK LEMONADE,” Malibu’s “FIZZY MANGO” drink, “IZZE” sparkling juice, “FIZZY FOX” sparkling shrub, IGA’s “FIZZY” sparkling water, and Hubble’s “FIZZY JUICE” sparkling juice drink. 1 For instance, the two best-selling brands of hard seltzers—White Claw and Truly—together sold over 64 million cases in 2019. See also Elena Elmerinda Scialabba, A Copy of a Copy of a Copy: Internet Mimesis and the Copyrightability of Memes, 18 Duke L. & Tech. Rev. 332, 350 n.139 (2020) (“[T]he U.S. is experiencing a White Claw shortage thanks to the many, many memes that drove the season’s insatiable thirst for the fizzy alcoholic beverage.” (cleaned up)). 2 Case: 20-50323 Document: 00515659541 Page: 3 Date Filed: 12/03/2020 No. 20-50323 The parties’ respective products look like this: The cans are dissimilar in a variety of ways. First, they are shaped differently. Second, Brizzy cans have “solid and dark backgrounds” along with a “‘digital’ appearance with bubbles and the vague shapes of drinking glasses.” In contrast, Vizzy cans have “white backgrounds” and “pictures of fruit.” Third, the text on each is different. Brizzy cans include the flavor and the words “SELTZER COCKTAIL” in small text. Vizzy cans feature the words “HARD SELTZER,” the flavor, and the bolded phrase “With Antioxidant Vitamin C.” Future Proof sued Coors for trademark infringement, seeking to pre- liminarily enjoin Coors from “selling and marketing products confusingly similar to” its BRIZZY mark. The district court declined to issue the injunc- tion. Future Proof timely appeals. II. We review the denial of a preliminary injunction for abuse of discre- tion. MWK Recruiting Inc. v. Jowers, No. 19-51064, 2020 U.S. App. LEXIS 35286 , at *3 (5th Cir. Nov. 6, 2020) (per curiam) (unpublished). “As to each element of the district court’s preliminary-injunction analysis, however, the district court’s findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be 3 Case: 20-50323 Document: 00515659541 Page: 4 Date Filed: 12/03/2020 No. 20-50323 reversed if incorrect.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262 , 267 (5th Cir. 2012) (cleaned up). For instance, the preliminary- injunction factor at issue—likelihood of confusion—“is a question of fact reviewed for clear error.” 2 Under the clearly-erroneous standard, we uphold factual findings that “are plausible in light of the record as a whole.” Moore v. Brown, 868 F.3d 398 , 403 (5th Cir. 2017) (per curiam). A preliminary injunction is “an extraordinary remedy which should not be granted unless the party seeking it has clearly carried [its] burden of persuasion . . . .” PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535 , 545 (5th Cir. 2005) (cleaned up). “Only under extraordinary circumstances will we reverse the denial of a preliminary injunction.” Anderson v. Jackson, 556 F.3d 351 , 355–56 (5th Cir. 2009) (cleaned up). Even if we disagree with the district court’s analysis in some places, “we may not simply . . . substitute our judgment for the trial court’s, else that court’s announced discretion would be meaningless.” White v. Carlucci, 862 F.2d 1209 , 1211 (5th Cir. 1989) (cleaned up). III. A plaintiff must prove four factors to obtain a preliminary injunction. 3 2 Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321 , 328 (5th Cir. 2008) (cleaned up). It is true that, “[w]hen a likelihood-of-confusion factual finding is inextric- ably bound up in, or infected by, a district court’s erroneous view of the law, we may con- duct a de novo review of the fully-developed record before us.” Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188 , 196 (5th Cir. 1998) (cleaned up). To the extent that the district court incorrectly ascertained the law, as noted below, those errors did not infect its likelihood-of- confusion finding. We thus review the likelihood-of-confusion finding for abuse of discre- tion, not de novo. 3 Planned Parenthood Ass’n of Hidalgo Cnty., Inc. v. Suehs, 692 F.3d 343 , 348 (5th Cir. 2012) (“To obtain a preliminary injunction, the appellees were required to demon- strate (1) a substantial likelihood of success on the merits, (2) a substantial threat of irrep- arable injury if the injunction were not granted, (3) that their substantial injury outweighed the threatened harm to the party whom they sought to enjoin, and (4) that granting the 4 Case: 20-50323 Document: 00515659541 Page: 5 Date Filed: 12/03/2020 No. 20-50323 Because Future Proof fails on the first factor—“a substantial likelihood of success on the merits”—we do not address the other three. Planned Parenthood, 692 F.3d at 348 . To determine likelihood of success on a trademark-infringement claim, courts consider (1) the type of mark infringed, (2) the similarity be- tween the marks, (3) the similarity of the products, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, (7) evidence of actual confusion, and (8) the degree of care exercised by potential purchasers. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack Apparel Co., 550 F.3d 465 , 478 (5th Cir. 2008). We label those “digits of confusion.” Viacom Int’l v. IJR Cap. Invests., L.L.C., 891 F.3d 178 , 192 (5th Cir. 2018). Two of those digits possess particular prominence: The sixth—bad intent—is “not necessary” but “may alone be sufficient to justify an infer- ence that there is a likelihood of confusion.” Streamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F.3d 440 , 455 (5th Cir. 2017) (cleaned up). Like- wise, the seventh—actual confusion—constitutes the “best evidence of a likelihood of confusion.” Viacom, 891 F.3d at 197 (cleaned up). “[A] finding of a likelihood of confusion need not be supported by a majority of the [digits].” Streamline Prod., 851 F.3d at 453 (cleaned up). And district courts may weigh those digits “differently from case to case, depend- ing on the particular facts and circumstances involved.” Id. (cleaned up). The district court concluded that the third, fourth, and fifth digits favored granting the injunction. Neither party contests that decision, so we don’t consider those digits. Future Proof contends that the court erred in preliminary injunction would not disserve the public interest.”). 5 Case: 20-50323 Document: 00515659541 Page: 6 Date Filed: 12/03/2020 No. 20-50323 evaluating the first, second, sixth, seventh, and eighth digits. We examine each. Although the court made some errors, it correctly concluded that Future Proof failed to show a substantial likelihood of success on its trademark-infringement claim. A. Future Proof contends that the district court erred in determining that the first digit—“the type of mark allegedly infringed”—weighed against the injunction. Smack Apparel, 550 F.3d at 478 (cleaned up). We disagree. The type-of-mark digit refers to the strength of a mark: Strong marks receive “the widest ambit of protection,” and weak marks do not. Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass’n, 651 F.2d 311 , 315 (5th Cir. July 1981). To determine the strength of a mark, we examine (1) “where the mark falls on a spectrum . . . .” of categories and (2) “the standing of the mark in the marketplace.” Am. Rice, 518 F.3d at 330 . 1. The spectrum employs five categories: “(1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, and (5) fanciful.” Streamline Prod., 851 F.3d at 451 (cleaned up). “[T]he strength of a mark, and of its protection, increases as one moves away from generic and descriptive marks toward arbitrary marks.” Am. Rice, 518 F.3d at 330 (cleaned up). We must deter- mine (1) which categories on the spectrum are strong and (2) where BRIZZY falls on the spectrum. a. The relevant spectrum measures two separate aspects of trademarks—distinctiveness and strength. Future Proof confuses the two. First, distinctiveness is a “condition[] for registration” of a mark on the principal register: “The more distinctive the mark, the more readily it quali- 6 Case: 20-50323 Document: 00515659541 Page: 7 Date Filed: 12/03/2020 No. 20-50323 fies for the principal register.” U.S. Pat. & Trademark Off. v. Booking.com B. V., 140 S. Ct. 2298 , 2302 (2020). Generic marks are never distinctive. Id. at 2303. Descriptive marks can become distinctive, but only by acquiring “secondary meaning.” Id. (cleaned up). Suggestive, arbitrary, and fanciful marks are “inherently distinctive . . . .” Id. at 2302 (cleaned up). Second, that spectrum helps us determine a mark’s strength. See Sun Banks, 651 F.2d at 315 . But the strength inquiry is different from the distinc- tiveness inquiry in that suggestive marks don’t always make the cut. “A strong mark is usually fictitious, arbitrary or fanciful . . . .” Id. Suggestive marks, on the other hand, are “comparatively weak . . . .” 4 Moreover, classi- fication of the mark on the spectrum is “not conclusive of ‘strength,’ . . . [because] a descriptive mark through vigorous promotion can become a strong mark, and an arbitrary mark that is not well known in the market can be a weak mark.” 5 In a word, suggestive marks are not necessarily strong marks that favor granting an injunction. For instance, we have found that suggestive marks 4 Sun Banks, 651 F.2d at 315 ; see also RESTATEMENT (THIRD) UNFAIR COMPE- TITION § 21, cmt. i (“As a general rule, trademarks that are fanciful or arbitrary tend to be stronger than those that are suggestive, and suggestive marks tend to be stronger than those that are descriptive . . . .”). 5 RESTATEMENT (THIRD) UNFAIR COMPETITION § 21, cmt. i. For instance, even where we concluded that a term might be arbitrary, we still concluded that the first digit weighed against finding a likelihood of confusion. Sun Banks, 651 F.2d at 315 , 318 (con- cluding that arbitrariness “does not precipitate absolute protection. Arbitrariness refers to the quality of a mark, i. e., [sic] that it bears no relation to the service provided. The ulti- mate strength of a mark, the key inquiry before us, is determined by a number of factors which establish its standing in the marketplace.” (emphases added)). 7 Case: 20-50323 Document: 00515659541 Page: 8 Date Filed: 12/03/2020 No. 20-50323 support granting an injunction, 6 support denying an injunction, 7 or are indeterminate, 8 depending on other factors that help establish strength. At issue is whether BRIZZY is strong—not whether it’s distinctive. 9 Thus, Future Proof cannot prevail on that digit solely by showing that BRIZZY is suggestive. b. The district court concluded that BRIZZY is descriptive. Coors agrees. Future Proof, on the other hand, contends that BRIZZY is arbitrary or suggestive. Neither party suggests that BRIZZY is generic or fanciful, so we don’t analyze those categories. We conclude that BRIZZY is suggestive. Courts define descriptive, suggestive, and arbitrary marks by their relationship to the products they represent. Descriptive marks “convey[] an 6 Where we found little persuasive evidence of third-party usage of a mark, we con- cluded that a mark’s status as suggestive “weighs in favor of finding a likelihood of con- fusion.” Streamline Prod., 851 F.3d at 454 7 We recently concluded that a suggestive mark’s potential strength was “substan- tially undercut by [its] lack of recognition in the market and widespread third-party use.” Springboards to Educ., Inc. v. Hous. Indep. Sch. Dist., 912 F.3d 805 , 815 (5th Cir. 2019), as revised (Jan. 29, 2019), as revised (Feb. 14, 2019). Even though the mark at issue was suggestive, we still concluded that “the first digit suggests no likelihood of confusion.” Id. 8 Where we determined that a mark was arguably suggestive, but also “appears frequently on cosmetics and grooming products,” we could not “say with certitude that [the mark] is strong or weak.” Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221 , 227–28 (5th Cir. 2009). In Xtreme Lashes, we determined that “[f]or summary judgment purposes”—where we had to view all facts in the light most favorable to the plaintiff— “the mark is entitled to protection.” Id. at 228. That same conclusion is not warranted where, as here, a plaintiff must prove that it has “clearly carried [its] burden of persuasion . . . .” PCI Transp., 418 F.3d at 545 (cleaned up). 9 Future Proof claims we must decide “whether the mark is inherently distinctive.” But that’s wrong. The present suit isn’t about whether BRIZZY makes it onto the principal register. It’s already there. And Coors doesn’t dispute the validity of that registration. 8 Case: 20-50323 Document: 00515659541 Page: 9 Date Filed: 12/03/2020 No. 20-50323 immediate idea of the qualities, characteristics, effect, purpose, or ingredi- ents of a product or service.” 10 Suggestive marks “require[] the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods . . . .” Amazing Spaces, 608 F.3d at 241 (emphasis added) (cleaned up). Arbitrary marks “bear no relationship to the products or services to which they are applied.” Id. (emphasis added) (cleaned up). We must, therefore, determine whether BRIZZY (1) conveys an immediate idea of the qualities of seltzers, (2) requires consumers to exercise their imaginations to draw conclusions about seltzers, or (3) bears no relationship to seltzers. First, BRIZZY is not descriptive, because it does not “convey[] an immediate idea” about the characteristics of hard seltzers. Zatarains, 698 F.2d at 792 . To conclude anything about hard seltzers from “brizzy,” a consumer must make an inference. For instance, a consumer might surmise that “brizzy”—because it rhymes with “fizzy”—denotes carbonation. But that consumer must first infer that “brizzy” is a play on “fizzy.” Using the same logic, a consumer might surmise that “brizzy”—because it rhymes with “dizzy”—denotes the sensation a consumer gets after a few rounds (because of a high alcohol content). But that consumer must first infer that “brizzy” is a play on “dizzy.” Either result constitutes conjecture. Given the necessary inference, BRIZZY does not “convey[] an immediate idea” about the characteristics of hard seltzers. Id. (emphasis added). 11 10 Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 , 792 (5th Cir. 1983) (emphasis added), abrogated on other grounds by KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004); see also Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225 , 241 (5th Cir. 2010) (defining a descriptive term as one that “identifies a characteristic or quality of an article or service . . . .”). 11 To the extent our precedents employ various tests to determine descriptiveness, BRIZZY flunks them all. Under the dictionary test, “the dictionary definition of the word is an appropriate and relevant indication of the ordinary significance and meaning of words to the public.” Zatarains, 698 F.2d at 792 (cleaned up). But “[t]his test is inapplicable 9 Case: 20-50323 Document: 00515659541 Page: 10 Date Filed: 12/03/2020 No. 20-50323 Second, BRIZZY is not arbitrary, because it “bear[s] [a] relationship to the products” to which it refers. Amazing Spaces, 608 F.3d at 241 (cleaned up). It rhymes with “fizzy,” which denotes the carbonated quality of hard seltzers. Moreover, arbitrary marks are usually “ordinary words which do not suggest or describe the services involved.” 12 And Future Proof concedes that “brizzy” is not an ordinary word in the English language, because Future Proof coined it. 13 BRIZZY is thus not arbitrary. Third, BRIZZY is suggestive. “Brizzy” relates to carbonation only because [“brizzy”] is not a standard dictionary term.” Blendco, Inc. v. Conagra Foods, Inc., 132 F. App’x 520, 521–22 (5th Cir. 2005) (per curiam). Under the imagination test, “[i]f a term requires imagination, thought and percep- tion to reach a conclusion as to the nature of goods,” it isn’t descriptive. Zatarains, 698 F.2d at 792 (cleaned up). As noted, a consumer must make an inference to reach any conclusion about the nature of hard seltzers from “brizzy.” We thus cannot conclude that “a consumer unfamiliar with [hard seltzers] would doubtless have an idea of [their] purpose or function” on seeing “brizzy.” Id. Under the competitor tests, we ask “whether competitors would be likely to need the terms used in the trademark in describing their products” or whether “a term actually has been used by others marketing a similar service or product.” Id. at 793 (cleaned up). But neither party suggests that competitors need to use “brizzy,” and neither party cites any instance of a competitor using “brizzy” to describe its product. 12 Union Nat’l Bank of Tex., Laredo v. Union Nat’l Bank of Tex., Austin, 909 F.2d 839 , 845 (5th Cir. 1990). For instance, “Ivory is an arbitrary term as applied to soap.” Amazing Spaces, 608 F.3d at 241 (cleaned up). Where we concluded that “domino” was “a common English name for a game, a hooded costume, a type of mask, and a theory of political expansion,” we decided that “its application to sugar may be arbitrary.” Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252 , 260 (5th Cir. 1980). 13 Fanciful marks—not arbitrary marks—“are most often coined words . . . .” Union Nat’l Bank, 909 F.2d at 845 ; see also Amstar, 615 F.2d at 260 (“Thus, ‘Domino’ is not a coined word, is not purely fanciful, and while its application to sugar may be arbitrary, it is still not to be accorded the same degree of protection given such coined and fanciful terms as ‘Kodak’ or ‘Xerox.’”). Because Future Proof does not contend on appeal that BRIZZY is fanciful, its contentions about coining “brizzy” only hurt its claim that BRIZZY is arbitrary. 10 Case: 20-50323 Document: 00515659541 Page: 11 Date Filed: 12/03/2020 No. 20-50323 because it rhymes with “fizzy.” 14 To make that connection—and make a conclusion about the carbonation of Brizzy—consumers must “exercise the imagination . . . .” Id. at 241 (cleaned up). A consumer must infer that “brizzy” is a play on “fizzy” and not on other words. That exercise of the imagination renders BRIZZY suggestive. Although we disagree with the district court’s classification of BRIZZY as a descriptive mark, suggestive marks—like descriptive marks— are “comparatively weak.” Sun Banks, 651 F.2d at 315 . Thus, even if the district court erred in making that initial classification, its ultimate conclusion that BRIZZY is weak was not necessarily erroneous. 15 c. Future Proof contends that the district court should have applied a presumption that BRIZZY was valid. We disagree. Registration of a mark on the principal register provides “prima facie evidence of the validity of the registered mark . . . .” 15 U.S.C. § 1057(b). That provision provides a presumption that a registered mark is inherently distinctive. All. for Good Gov’t v. Coal. for Better Gov’t, 901 F.3d 498 , 507, 508 (5th Cir. 2018). The rationale is that, if the USPTO didn’t require evi- dence of secondary meaning—which it would have needed if the mark were merely descriptive—the USPTO must have registered the mark based on its 14 Future Proof seems to suggest that “brizzy” has nothing to do with “fizzy,” claiming that Coors contended “ispe dixit” that “brizzy” “originates in large part from the term ‘fizzy.’” That’s an odd suggestion, given Brizzy’s slogan, “FOLLOW THE FIZZ.” 15 See Springboards to Educ., 912 F.3d at 815 . Coors claims that Future Proof’s fail- ure to contend that BRIZZY is suggestive until its reply prohibits it from contending on appeal that BRIZZY is suggestive. We don’t decide that issue, because it wouldn’t change our analysis: Even assuming that BRIZZY is suggestive, the district court still did not err in concluding that BRIZZY is weak. 11 Case: 20-50323 Document: 00515659541 Page: 12 Date Filed: 12/03/2020 No. 20-50323 conclusion that the mark is inherently distinctive. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527 , 537 n.1 (5th Cir. 2015). But “the presumption of validity that attaches to a service mark is not relevant to the issue of infringement.” Sun Banks, 651 F.2d at 315 (cleaned up). And that makes sense. For an infringement claim, we examine the strength of a mark, not its distinctiveness or validity. 16 Thus, Future Proof’s claim that the district court should have given “weight to the presumption of distinctiveness” is inconsistent with our precedent. 17 2. Although Future Proof largely closes its argument by contending that BRIZZY is distinctive, that is not the end of our analysis. Besides the spectrum, to determine strength, “the key inquiry before us, is determined by . . . standing in the marketplace.” Sun Banks, 651 F.2d at 315 . Specifically, evidence of “third-party single and multi-word uses” of a mark tends to show weakness. Id. at 316. We do not require third-party usage involving the plain- tiff’s entire mark, but instead only the portion of the plaintiff’s mark that the 16 Future Proof contends that, in Amazing Spaces, we “explain[ed]” that, where there is “overlap between the elements of infringement and the USPTO’s conclusion about validity,” we require “evidence . . . to overcome the presumption.” Not so. In fact, in Amazing Spaces, 608 F.3d at 234 , we analyzed the presumption in the context of a claim that the mark there was not “legally protectable as a service mark,” and only after analyzing that claim did we examine trade-dress-infringement claims—without once referring to the presumption , id. at 250–52. 17 Although Future Proof doesn’t expressly advance it, one theory is that the pre- sumption of inherent distinctiveness does not provide a presumption in the context of an infringement claim, but it does provide evidence that a mark is not descriptive, but instead suggestive, arbitrary, or fanciful. Because Future Proof did not raise that theory, we do not address it. We note, however, that our conclusion that BRIZZY is suggestive comports with that theory. 12 Case: 20-50323 Document: 00515659541 Page: 13 Date Filed: 12/03/2020 No. 20-50323 defendant also uses. 18 Brizzy and Vizzy share the common “IZZY” root. Several third par- ties also brand their products with the “IZZY” root. Those include Malibu’s “FIZZY PINK LEMONADE,” Malibu’s “FIZZY MANGO” drink, “IZZE” sparkling juice, “BIZZY” coffee, “FIZZY FOX” sparkling shrub, IGA’s “FIZZY” sparkling water, and Hubble’s “FIZZY JUICE” sparkling drink. That third-party usage of the “IZZY” root tends to show that BRIZZY is weak. In fact, we recently concluded that a suggestive mark did not “enjoy strong standing in the market,” where the record showed six examples of third-party usage, which constituted “widespread third-party use.” Springboards to Educ., 912 F.3d at 815 . Future Proof raises two objections to that analysis. First, it objects that “not one beverage product identified by Coors is a hard seltzer.” But we do not confine our analysis of third-party usage to products of the exact type that the plaintiff sells. 19 18 For instance, in Sun Banks, 651 F.2d at 316 , where we analyzed the likelihood of confusion between “Sun Banks” and “Sun Federal Savings and Loan Association,” we found that “third-party use of the word ‘Sun’ . . . .” was persuasive of weakness. Simi- larly, in Holiday Inns, Inc. v. Holiday Out In Am., 481 F.2d 445 , 446, 448 (5th Cir. 1973), where we analyzed the likelihood of confusion between “Holiday Inn” and “Holiday Out,” we found evidence that “‘Holiday’ is used, alone or in combination with words other than ‘Inn,’ throughout the United States” to be persuasive. 19 Thus, where we analyzed the likelihood of confusion between the marks of pizza and sugar companies, we examined third-party usage for products like “canned fruits, citrus, cigarettes, cheese, wheat flours, chrome-tanned leather, canned sardines, animal feed, envelopes, pencils, fishing line, candy mints, whiskey, ladies’ hosiery and hair- cream.” Amstar, 615 F.2d at 259 . Where we examined the likelihood of confusion between two financial institutions, only 75 of 4,400 examples of third-party usage came from finan- cial institutions. Sun Banks, 651 F.2d at 316 & n.8. Future Proof is correct that “[t]hird-party use for unrelated products is not rele- vant when evaluating descriptiveness” under the competitor test. Xtreme Lashes, 576 F.3d at 233 (emphasis added). But standing in the marketplace and descriptiveness are two 13 Case: 20-50323 Document: 00515659541 Page: 14 Date Filed: 12/03/2020 No. 20-50323 Second, Future Proof implies that we may not parse letters of a mark for the purposes of identifying third-party usage, contending that Coors “failed to identify a single competitor using the term ‘BRIZZY’ to market any product.” But we don’t require litigants to show third-party usage of the plaintiff’s entire mark. Instead, third-party usage involves the portion of the plaintiff’s mark that the defendant also uses. See Sun Banks, 651 F.2d at 314 , 316; Holiday Inns, 481 F.2d at 448 . At bottom, it’s Future Proof’s contention about how the two marks might confuse consumers that warrants our parsing of BRIZZY. 20 Future Proof contends that consumers will confuse Brizzy and Vizzy not because the “Br” and “V” letters are similar, but because the marks share the common “IZZY” root. 21 Because Future Proof has made the shared “IZZY” root the basis of its claim, it is likewise appropriate to analyze third-party usage of the “IZZY” root. Because BRIZZY is suggestive and there is significant evi- dence of third-party usage, the district court’s conclusion that BRIZZY is weak is not “clear error” as Future Proof suggests. B. Future Proof contends that the district court erred in determining that the second digit—“the similarity between the two marks,” Smack Apparel, 550 F.3d at 478 (cleaned up)—weighed “only marginally in favor of granting separate inquiries. Sun Banks, 651 F.2d at 315 . 20 Where a plaintiff sought to enjoin a defendant “from using the name ‘Sun’ . . . in the advertising and promotion of banking services,” we analyzed third-party usage of “Sun”—not the plaintiff’s entire mark. Sun Banks, 651 F.2d at 313 , 316. 21 Specifically, Future Proof says, “the marks are so similar that they differ only by the initial character(s)–‘V’ instead of ‘BR.’ Otherwise, the marks have the same number of syllables, the same stress pattern, and are made up of the exact same sequence of characters—IZZY—which causes the marks to not only rhyme, but when spoken, to be difficult to distinguish based solely on the initial consonant sounds.” 14 Case: 20-50323 Document: 00515659541 Page: 15 Date Filed: 12/03/2020 No. 20-50323 the injunction . . . .” That digit, the argument goes, weighs “heavily in favor of injunctive relief” for two reasons: the court erroneously (1) “focused on certain visual differences in product packaging” and (2) failed to consider the aural similarities of “brizzy” and “vizzy.” We disagree on both points. First, Future Proof claims that the court shouldn’t have considered differences in product packaging. But to determine the similarity of two marks, we examine “whether, under the circumstances of use, the marks are similar enough that a reasonable person could believe the two products have a common origin or association.” Xtreme Lashes, 576 F.3d at 228 . And it is well established that “[c]ourts consider marks in the context that a customer perceives them in the marketplace,” which can include “labels, packages, or . . . advertising material directed to the goods . . . .” 22 The district court correctly noted several differences in product pack- aging. Brizzy and Vizzy cans have different shapes. Moreover, Brizzy cans have “solid and dark backgrounds” with a “‘digital’ appearance with bub- bles and the vague shapes of drinking glasses.” Vizzy cans, on the other hand, feature white backgrounds and pictures of fruit. Finally, the text sur- rounding each mark is different. Brizzy cans have the flavor and the words “seltzer cocktail” in small text. Conversely, Vizzy cans feature the words “hard seltzer,” the flavor, and the “bolded text ‘With Antioxidant Vitamin C.’” Second, Future Proof claims that the court failed to consider aural similarities of the “B” and “V” consonants. That claim is baseless, because 22 Capece, 141 F.3d at 197 (cleaned up); see also 4 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:26 (5th ed. 2020) (“The ‘meaning’ that is alleged to be similar is that which is known to the ordinary viewer or customer. . . . In determining the meaning and connotation which the trademark projects, it is proper to look to the context of use, such as material on labels, packaging, advertising and the like.”). 15 Case: 20-50323 Document: 00515659541 Page: 16 Date Filed: 12/03/2020 No. 20-50323 the court did consider the aural similarities of “B” and “V.” It is true that the aural similarities of two marks are relevant. Capece, 141 F.3d at 201 . Here, the only difference between the two marks is the “Br” and “V” consonants. And the Court of Customs and Patent Appeals did conclude that “‘VEEP’ and ‘BEEP’” are similar marks, because “[t]he consonant sounds ‘B’ and ‘V’ are likely to be misunderstood by the listener, depending as they do on such variables as the diction of the speaker and the hearing acuity of the listener.” Krim-Ko Corp. (Krim-Ko Div., Nat. Sugar Ref. Co.) v. Coca- Cola Bottling Co. of N.Y., 390 F.2d 728 , 731–32 (C.C.P.A. 1968). The court didn’t provide any citation to support that claim, and the court didn’t analyze BRIZZY’s “Br” sound. Future Proof thus overemphasizes Krim-Ko’s per- suasive value, and, contrary to what Future Proof contends, Krim-Ko in no way “compels the conclusion” that BRIZZY and VIZZY are “confusingly similar . . . .” In any event, the district court concluded that the similarity of the “B” and “V” consonants “is relevant here.” Future Proof also contends that those aural similarities are “particu- larly important,” because consumers often purchase alcoholic drinks “by verbal request” in bars and restaurants. But Future Proof provides no evi- dence that its seltzers sell primarily—or at all—in bars and restaurants. 23 In fact, Future Proof tells us that consumers can find Brizzy at “retail locations” like “H-E-B” or “Circle K.” Even supposing that Brizzys pervade bars and restaurants, our precedent says only that “[s]imilarity of sound . . . may be taken into account,” not that we should place aural similarity on a pedestal. Marathon Mfg. Co. v. Enerlite Prod. Corp., 767 F.2d 214 , 219 (5th Cir. 1985) 23 Future Proof does claim that “Coors intends its Vizzy hard seltzer products to compete head-to-head with Future Proof’s Brizzy® hard seltzer products in grocery and liquor stores, bars, and restaurants.” But that’s a statement of intent, not evidence of the locations where a consumer can find Brizzy. 16 Case: 20-50323 Document: 00515659541 Page: 17 Date Filed: 12/03/2020 No. 20-50323 (emphasis added) (cleaned up). The court did not err in concluding that that digit weighs “only marginally in favor of granting the injunction . . . .” C. Future Proof claims that the court “did not correctly weigh” the sixth digit—“the defendant’s intent,” Smack Apparel, 550 F.3d at 478 (cleaned up)—because it found that that digit “weighs in favor of denying the injunc- tion.” Specifically, it claims that the sixth digit is “no worse than neutral.” Even assuming that the district court erred, that would not be substantial enough to render the court’s ultimate decision about likelihood of confusion an abuse of discretion. First, Future Proof claims that Coors and its executives were “keenly aware” and had “constructive notice” of Brizzy at the time they began mar- keting Vizzy. “But mere awareness of the senior user’s mark does not estab- lish . . . bad intent.” Streamline Prod., 851 F.3d at 456 (cleaned up). Instead, “[o]ur intent inquiry focuses on whether the defendant intended to derive benefits from the reputation of the plaintiff,” and we usually rely on evidence that a defendant “imitat[ed] . . . packaging material” or “adopt[ed] similar distribution methods.” Id. at 455, 456 (cleaned up). Future Proof provides no such evidence. Given its failure to provide evidence, Future Proof’s claims about Coors’s knowledge do not establish bad intent. Second, Future Proof says that the district court erroneously con- cluded that “[t]his digit weighs in favor of denying the injunction” even though that digit can only be neutral. Our precedent has used inconsistent language on that issue. We usually indicate that an absence of intent renders that digit neutral. 24 Conversely, we have also found that the digit can 24 See Xtreme Lashes, 576 F.3d at 229 (“However, with no evidence of Xtended’s intent, this factor is neutral.”); Viacom Int’l, 891 F.3d at 195 (“If there is no evidence of 17 Case: 20-50323 Document: 00515659541 Page: 18 Date Filed: 12/03/2020 No. 20-50323 “weigh[] against finding a likelihood of confusion.” Streamline Prod., 851 F.3d at 457 . Coors is silent on that point. We do not resolve that inconsistency here. Even assuming, arguendo, that the district court got it wrong, that error would not tip the scales in favor of finding an abuse of discretion. Future Proof bears the burden of estab- lishing a likelihood of success, and it failed to provide evidence on that digit. Thus, even if the court employed the wrong language in drawing its con- clusion about that digit, it correctly concluded that the sixth digit does not support the injunction. D. Future Proof contends that the district court erred in determining that the seventh digit—“evidence of actual confusion” among consumers, Smack Apparel, 550 F.3d at 478 (cleaned up)—“weighs against granting the injunc- tion.” The court did not err in weighing that digit. The district court considered “one instance of actual confusion,” namely that a wholesaler confused Brizzy and Vizzy. The court concluded that (1) that was not evidence of actual confusion, because it involved a wholesaler—not a consumer—and (2) regardless, the instance involved a fleeting mix-up of names, which is insufficient to establish actual confusion. Future Proof objects to that first conclusion, contending that the district court was wrong to conclude that “a wholesaler is not a consumer” for pur- poses of actual confusion. We agree on that point. A “plaintiff need not . . . prove confusion in actual consumers,” where there is evidence of actual intent to confuse, then this factor is neutral.”); Capece, 141 F.3d at 203 (“If the defendant acted in good faith, then this digit of confusion becomes a nonfactor in the likelihood-of- confusion analysis, rather than weighing in favor of a likelihood of confusion.”). 18 Case: 20-50323 Document: 00515659541 Page: 19 Date Filed: 12/03/2020 No. 20-50323 confusion “on [the] part of distributors.” 25 The district court thus incur- rectly concluded that wholesalers do not count as consumers. But the district court expressly set that erroneous conclusion aside and determined that, regardless, the alleged isolated incident was not “actual confusion,” but instead a fleeting “mix-up.” And it is telling that Future Proof does not object to that second conclusion. Actual confusion must be “more than a fleeting mix-up of names . . . .” Streamline Prod., 851 F.3d at 457 (cleaned up). A plaintiff “must show that the confusion . . . swayed consumer purchases.” Id. (cleaned up). Future Proof offered evidence that a wholesaler once asked a Future Proof employee about Vizzy, instead of Brizzy. 26 But Future Proof provides no evidence that that confusion “swayed consumer purchases.” Id. (cleaned up). At best, it has shown a “fleeting mix-up of names,” and that isn’t sufficient to establish actual confusion. Id. (cleaned up). Consequently, the district court did not err in concluding that Future Proof failed to show actual confusion. E. Future Proof contends that the district court “did not correctly weigh” the eighth digit—“the degree of care exercised by potential pur- chasers,” Smack Apparel, 550 F.3d at 478 (cleaned up)—because it found 25 Soc’y of Fin. Exam’rs. v. Nat’l Ass’n of Certified Fraud Exam’rs Inc., 41 F.3d 223 , 228 n.11 (5th Cir. 1995) (emphasis omitted) (citing Fuji Photo Film v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591 , 597 (5th Cir. 1985)); see also Fuji Photo, 754 F.2d at 597 (“[T]he trial court appears to have believed that only actual confusion on the part of ulti- mate purchasers was relevant . . . . This was error . . . .”). 26 Future Proof also claims that one of its wholesalers “expressed concern about the confusion that its sales team will experience when simultaneously selling and distrib- uting Brizzy® products alongside the Vizzy product.” But that is an allegation about some- one’s opinion of confusion, not actual confusion. In any event, Future Proof provides no evidence that that confusion “swayed consumer purchases.” Id. (cleaned up). 19 Case: 20-50323 Document: 00515659541 Page: 20 Date Filed: 12/03/2020 No. 20-50323 that that digit “provides little or no relevance . . . .” The court did not err. Future Proof gave the district court one piece of evidence to prove the degree of care: A 12-pack of Brizzy sells for the “low cost” of $14.99. Al- though we have concluded that, “[w]here items are relatively inexpensive, a buyer may take less care in selecting the item,” id. at 458 (emphasis added), we have never concluded that a low price is sufficient to establish a dearth of care. In fact, we often rely on affidavits or testimony to show a lack of con- sumer care. See, e.g., Xtreme Lashes, 576 F.3d at 231 ; Smack Apparel, 550 F.3d at 483 . Future Proof provides no such evidence. Future Proof moreover urges that consumers make “quick decisions” about hard seltzers “in a crowded array, often in a crowded bar or restau- rant.” But Future Proof provides no affidavits, testimony, or other evidence supporting that proposition. In fact, Future Proof provides the pricing infor- mation for its 12-packs in “retail locations” like “H-E-B” or “Circle K”— not for individual cans a consumer might order at a bar or restaurant. With- out evidence that consumers typically make snap decisions to purchase Brizzy in teeming bars and restaurants, the district court correctly concluded the eighth digit does not favor granting the injunction. IV. Because a finding of a likelihood of confusion “need not be supported by a majority” of the digits and each digit “may weigh differently from case to case,” Streamline Prod., 851 F.3d at 453 (cleaned up), we review the court’s ultimate conclusion about likelihood of success for clear error. See Am. Rice, 518 F.3d at 328 . In sum, the district court concluded that three digits supported the injunction and one weighed “marginally in favor of granting the injunction . . . .” But the court correctly concluded that the other four factors did not support the injunction. And, notably, the court correctly concluded that the two digits that have special importance, namely 20 Case: 20-50323 Document: 00515659541 Page: 21 Date Filed: 12/03/2020 No. 20-50323 the sixth—which “may alone be sufficient to justify an inference that there is a likelihood of confusion,” Streamline Prod., 851 F.3d at 455 —and the seventh—which constitutes the “best evidence of a likelihood of confusion,” Viacom Int’l, 891 F.3d at 197 (cleaned up)—did not support the injunction. The court did not commit clear error in concluding that Future Proof failed to carry its burden of showing a likelihood of success on the merits. Therefore, the decision isn’t one of the “extraordinary circumstances,” in which a district court so clearly erred that we will “reverse the denial of a preliminary injunction.” Anderson, 556 F.3d at 355 –56. The court did not abuse its discretion. AFFIRMED. 21

2020-12-03 19:00:27.621704+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-60298.0.pdf

Case: 19-60298 Document: 00515659781 Page: 1 Date Filed: 12/03/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 3, 2020 No. 19-60298 Lyle W. Cayce Summary Calendar Clerk Engelbert Felix Carbajal-Betanco, also known as Engelbert Felix Carvajal-Betanco, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A096 180 187 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Engelbert Carbajal-Betanco, a native and citizen of El Salvador, petitions for review of an immigration judge’s decision affirming an asylum officer’s determination that he lacked a reasonable fear of persecution or * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60298 Document: 00515659781 Page: 2 Date Filed: 12/03/2020 No. 19-60298 torture. On appeal, he presents claims that pertain only to the determination that he lacked a reasonable fear of persecution. Therefore, he has abandoned any challenge to the determination that he failed to demonstrate that he was more likely than not to be tortured upon his return to El Salvador. See Chambers v. Mukasey, 520 F.3d 445 , 448 n.1 (5th Cir. 2008). The Government has also filed a motion to dismiss the petition for review. To establish a reasonable fear of persecution, an alien must “establish[] a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion.” 8 C.F.R. § 1208.31(c). 1 To demonstrate persecution, the applicant must establish that one of the five statutorily protected grounds was “at least one central reason” for the harm that he experienced. Martinez Manzanares v. Barr, 925 F.3d 222 , 227 (5th Cir. 2019) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Carbajal-Betanco argues that he was persecuted on account of owning a small business, being a former gang member, and being a practicing Christian. However, economic extortion is not a form of persecution under immigration law. See Singh v. Barr, 920 F.3d 255 , 259 (5th Cir. 2019). Moreover, Carbajal-Betanco’s claim that he could be threatened by gangs if they discover he was in a rival gang in his youth does not rise to the level of persecution because it is “non-specific” and “lacking in immediacy.” See 1 Although the Government argues that this court should apply a “facially legitimate and bona fide reason” standard rather than the substantial evidence standard in evaluating an immigration judge’s reasonable fear determination, it is not necessary to determine the appropriate standard of review at this time because Carbajal-Betanco’s claim fails even under the less deferential substantial evidence test. See Lara-Nieto v. Barr, 945 F.3d 1054 , 1060 n.5 (8th Cir. 2019). Under the substantial evidence standard, this court may not overturn a factual finding unless the evidence compels a contrary result. Martinez- Lopez v. Barr, 943 F.3d 766 , 769 (5th Cir. 2019). 2 Case: 19-60298 Document: 00515659781 Page: 3 Date Filed: 12/03/2020 No. 19-60298 Munoz-Granados v. Barr, 958 F.3d 402 , 407 (5th Cir. 2020) (quoting Qorane v. Barr, 919 F.3d 904 , 910 (5th Cir. 2019)). Finally, although he argues that he was targeted because he is a practicing Christian, he explicitly stated that the gang threatened him not because of his religion, but because he lived in a different “colony.” Because the record does not compel the conclusion that Carbajal-Betanco suffered past persecution or that he has a well-founded fear of future persecution, substantial evidence supports the immigration judge’s reasonable fear determination. Based upon the foregoing, the petition for review is DENIED and the motion to dismiss is DENIED as moot. 3

2020-12-03 19:02:28.589257+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313770

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY LADOSHA COVERDALE, ) ) Plaintiff, ) ) V. ) C.A. No: CPU4-19-002673 ) ANTWINE WITCHER, Individually and ) As Agent for CORIN DAVIS and DEAN ) DAVIS; CORIN DAVIS individually _) And as Agent for DEAN DAVIS, ) ) Defendant. ) Reserved: August 3, 2020 Decided: December 3, 2020 Joseph J. Longobardi, III, Esquire Theordore J. Selgletes, III, Esquire M. Jean Boyle, Esquire 3 Mill Road, Suite 301 Longobardi & Boyle, LLC Wilmington, DE 19806 1700 Augustine Cut Off (302) 777-0100 Wilmington, DE 19803 Attorney for Defendants (302) 575-1502 Attorneys for Plaintiff ORDER REGARDING RELATION BACK OF CLAIMS AGAINST ANTWINE WITCHER HORTON, J. FACTUAL AND PROCEDURAL HISTORY On July 9, 2019, Ladosha Coverdale (“Coverdale”) filed a Complaint against Dean Davis (“Dean”), alleging that on July 9, 2017, Dean was operating a vehicle when it collided with Coverdale and, as a result, Coverdale incurred medical expenses and other damages. On September 30, 2019, Dean filed a Motion to Dismiss along with an affidavit stating that he was not operating the vehicle at the time the alleged collision occurred; rather, he had loaned it to his daughter, Corin Davis (“Corin”), who in turn allowed her friend, Antwine Witcher (“Witcher”) to drive the car at the time of the accident.! On October 15, 2019, Coverdale filed an Amended Complaint seeking to add Corin and Witcher as defendants. A hearing on both motions was held on October 25, 2019, during which the Court dismissed the suit against Dean without prejudice. During the hearing, Dean raised the issue of the relation back doctrine, particularly as it relates to Witcher whom had not yet been served. After discussion, Coverdale orally withdrew her Motion to Amend the Complaint as to Witcher until such time as Witcher could be served. The Court granted Coverdale’s Motion as to Corin Davis, who was then added as a Defendant. On November 5, 2019, the Court granted Coverdale’s Motion for Enlargement of Time to serve “Defendant(s)”.” ! The parties have also referred to Antwine Witcher as “Antoine Watcher” on various occasions. For purposes of this Decision, the Court will refer to him only as “Witcher.” 2 A review of the docket reveals Coverdale filed this Motion almost immediately after the October 25, 2019 hearing, requesting additional time to serve unnamed defendant(s). 2 Notwithstanding the Court’s October 25, 2019 ruling, Coverdale filed a subsequent Motion to Amend Complaint seeking to add Corin and/or Witcher on January 24, 2020. On January 28, 2020, Coverdale filed a second Motion for Enlargement of Time to serve “Defendant(s).” On February 7, 2020, the Court held a hearing on Coverdale’s Motion to Amend Complaint, during which the Court re- addressed the issue of relation back. Coverdale denied that relation back remained an issue as “[the defendants] are all on notice within the statutory time frame for service of process.” At the conclusion of the hearing, the Court granted both of Coverdale’s motions, but reserved decision on relation back until the issue was raised again.? On that same day, Coverdale filed an Amended Complaint that included Corin and Witcher in the caption. On April 17, 2020, Coverdale filed a Motion to Deem Service Complete as to Witcher.’ A hearing on the Motion was held on August 3, 2020. At the hearing, both parties presented oral argument. The Court found that Coverdale did not provide evidence satisfactory to the Court to demonstrate proper service and denied the Motion. However, the Court did give Coverdale an additional 60 days to perfect service on Witcher. Additionally, the Court asked for argument on the pending > The Court notes that, prior to the hearing date, Dean informed the Court that he took no position on Coverdale’s Motions to Amend Complaint and Enlargement of Time and, therefore, asked to be excused from attending the hearing. The Court granted Dean’s request. ‘ At this point, Dean was dismissed from the case, however, he was still included in the caption. 3 relation back issue. The parties were not prepared to present an argument, so the Court ordered briefing on the issue. PARTIES POSITIONS It is Witcher’s position that Coverdale cannot satisfy the relation back doctrine set forth in Court of Common Pleas Civil Rule 15(c) for three reasons: (1) Witcher did not have notice of the lawsuit before the statute of limitations expired; (2) it cannot be established that, but for a mistake, Witcher would have been properly named or given adequate notice of suit; and (3) Witcher did not receive adequate notice of the suit. In contrast, Coverdale asserts that the relation back doctrine has been satisfied because: (1) Witcher had actual notice of the Amended Complaint before the expiration of the statute of limitations plus the service of summons 120 day period; (2) the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading; and (3) Witcher knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have originally been brought against him. In support of her argument, Coverdale attached Exhibits that include: Witcher’s alleged Facebook page, an affidavit from Coverdale’s counsel, Facebook messages with an office paralegal, and photos of the Facebook messages with Witcher. ANALYSIS The issue before the Court is whether claims against Witcher relate back to the date of Coverdale’s Original Complaint and are thus not barred by the statute of limitations. ° Coverdale has the burden to demonstrate that the requirements have been met.® In relevant part, Ct. Com. PI. Civ. R. 15(c) provides that an amendment adding a party will relate back to the date of the original pleading if the following conditions are met: (1) Theclaim arose out of the same underlying event alleged in the original complaint; and (2) Within the period provided by statute or the Rules for service of the summons and complaint, the party to be added (A) Has received notice of the lawsuit, such that he will not suffer prejudice; and (B) Knew or should have known that but for a mistake concerning the identity of the proper party, he would have been named as a party in the original complaint.’ There is no dispute that the first requirement of relation back is met; the claims against Witcher arose from the same vehicle collision alleged in the Original > Smith v. Hawkins, 2008 WL 555915 *1 (Del. Super. Jan. 31, 2008); Allmaras v. Board of Adjustment of Sussex County, 2019 WL 5955993 (Del. Super. Nov. 12, 2019). ® Smith, 2008 WL 555915 at *1. T Allmaras, 2019 WL 5955993 at *3. Complaint. Therefore, the Court’s analysis must center on whether the remaining requirements are satisfied—that is, whether Witcher timely received notice of the lawsuit and will not be prejudiced in maintaining a defense, and whether Witcher knew that, but for the mistake in identifying the proper party, he would have been named in the Original Complaint. Under Rule 15(c)(3), where an amendment changes the party against whom a claim is asserted, such claim will relate back to the date of the original pleading only if the newly-added party receives suitable notice within the time period for service of the summons and complaint provided by the rules. Pursuant to Ct. Com. PI. Civ. R. 4(j), the time period for service of the summons and complaint is 120 days. Therefore, for relation back to apply, Witcher must have received notice within 120 days of the filing of the Complaint, i.e., on or before November 6, 2019. Turning to the notice component, although it need not be formal or in writing, the newly-added party must have notice of the lawsuit itself, not merely of a claim or allegation against them.’ The exact date upon which Witcher received notice of the instant lawsuit has not been definitively established.'!? According to Coverdale’s 8 Walker v . Handler, 2010 WL 4703403 *1, *3 (Del. Super. Nov. 17, 2010). ° Haas v. Pettinaro Mgmt., LLC, 2017 WL 4570817 , at *4 (Del. Com. Pl. Oct. 13, 2017). 10 During the August 3, 2020 hearing, the Court allowed Plaintiff an additional 60 days to serve Witcher. On October 6, 2020, Plaintiff's counsel filed a letter in which he asserts that though the special process server was not able to achieve personal service on September 2, 2020, at some point thereafter, the process server received a call from Witcher during which Witcher stated “he would not be served.” In subsequent letters, Plaintiff's counsel indicated that he had also received return receipts from certified mail he addressed to Witcher in which he enclosed the Amended Complaint. exhibits, it appears that her counsel sent a Facebook message (“the Facebook Message”) to an Antwine Witcher on November 4, 2019 with a copy of the proposed Amended Complaint naming him in the lawsuit. While Coverdale alleges Witcher responded, she does not provide any evidence as to the date that Witcher received or responded to her message. Moreover, the only evidence that the Facebook Message was sent to the correct Witcher is Coverdale’s assertion that, over two years after the accident, she identified Witcher based on pictures associated with his Facebook account. The Court will not engage in speculative fact-finding to determine if Witcher received proper notice of the lawsuit within the 120 days or if the alleged Witcher on Facebook was in fact the right person in question.'! Finally, relation back will apply only if Witcher knew—by November 6, 2019—+hat but for a mistake as to the identity, he would have been named as a party to this litigation from the outset. The inquiry here is twofold: was there a qualifying mistake, and was Witcher aware of it? Delaware follows a strict approach when determining if there was a mistake in naming the original party. “When the original complaint and the plaintiffs conduct compel the conclusion that the failure to name the prospective defendant in the original complaint was the result of a fully informed decision as opposed to a mistake concerning the proper defendant’s identity, the requirements of the [relation "\ Haas, 2017 WL 4570817 at *5. back doctrine] are not met.”!? Furthermore, when a plaintiff cannot demonstrate either an intent to include an unnamed party prior to the expiration of the limitations period or that she was misled as to the identity of certain parties, Delaware courts typically do not find that a mistake occurred.'? Failing to “ferret-out” the correct party or choosing to sue an improper party do not amount to a relation-back- qualifying mistake. In her Motion to Amend the Complaint, Coverdale alleged that at the scene of the collision, insurance information was exchanged that revealed that Dean was the insured. However, Coverdale does not allege that she believed that Dean was the driver of the vehicle on the day of the accident. Coverdale has provided no evidence that she mistakenly took Witcher for Dean on the day of the accident or that Witcher misrepresented himself to her as Dean. She has not outlined any investigative efforts she undertook to identify the driver’s identity prior to filing the original complaint, nor has she given any other explanation for naming Dean as the defendant instead of Witcher. Moreover, Witcher’s awareness of Coverdale’s mistaken belief is a critical element for relation back.!® Coverdale contends that her inclusion of a copy of the Amended Complaint in the Facebook Message to Witcher serves as evidence that Witcher knew or should have known that Coverdale intended to include him in the 2 Allmaras v. Board of Adjustment of Sussex County, 2020 WL 4669008 *2 (Del. 2020). 13 Haas, 2017 WL 4570817 at * 6 (citations omitted). 4 See Id. 15 Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258 , 265-66 (Del. 1993). 8 lawsuit. This contention is inapposite. The question is not whether Witcher knew or should have known that Coverdale intended to include him in the lawsuit; the question is whether Witcher knew that he would have been included in the lawsuit had Coverdale not made a mistake in identifying him as the proper party. Further, as outlined above, it is unclear to this Court whether the Facebook Message was sent to the appropriate Witcher or when the Facebook Message was received by him. CONCLUSION For the foregoing reasons, the Court finds that the circumstances in the instant case are not such to warrant relation back, as Coverdale has not satisfied the requirements for her claims against Witcher to relate back to the date of the Original Complaint under Rule 15(c). Therefore, her claims against Witcher are DISMISSED as time-barred by the statute of limitations. 4 Monica i orton, Judge IT IS SO ORDERED. cc: Pat Thomas, Judicial Case Manager

2020-12-03 19:02:58.610381+00

https://isc.idaho.gov/opinions/48109.pdf

IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 48109 STATE OF IDAHO, ) ) Plaintiff/Respondent, ) Boise, November 2020 Term ) v. ) Filed: December 3, 2020 ) JOHN ALLISON HUCKABAY ) Melanie Gagnepain, Clerk ) Defendant/Appellant. ) _________________________________________ ) Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Benjamin Simpson, District Judge. The judgment of the district court is affirmed. Lake City Law Group, Coeur d’Alene, attorneys for Appellant. Stephen R. Matthews, pro hac vice argued. Lawrence G. Wasden, Idaho Attorney General, Boise, attorneys for Respondent. Kale Gans argued. ___________________ BEVAN, Justice This case comes to the Court on a petition for review from the Idaho Court of Appeals. Defendant John Huckabay appeals his criminal conviction of felony unlawful possession of a moose. The primary question before this Court is one of statutory interpretation: whether Idaho Code section 36-1401(c)(3) requires the unlawful killing, possessing, or wasting of more than one animal to constitute a felony offense. For the following reasons, we hold that the statute can plainly apply to the unlawful killing, possessing, or wasting of a single animal. I. FACTUAL AND PROCEDURAL BACKGROUND On the morning of October 2, 2014, a married couple heard a gunshot as they were packing up to leave their cabin by Mica Bay on Lake Coeur d’Alene. They soon left their cabin and encountered a large truck with a cow moose hoisted in the back on a metal frame. A man beside the truck introduced himself as John Huckabay. At their inquiry, Huckabay told the 1 couple he had a tag for the moose. The driver, still in the truck, introduced himself as “Bob” and was later identified as Bob Cushman, a local butcher and the owner of the vehicle. As the couple departed, the wife looked up Idaho’s moose hunting season on her phone. Concerned of a potential hunting violation, the couple proceeded to the Idaho Department of Fish and Game’s (“IDFG”) regional office where they reported the shooting of an antlerless moose by a man named Huckabay. An IDFG enforcement officer contacted Huckabay that same afternoon and they met at the IDFG regional office in Coeur d’Alene. While Huckabay did not give the IDFG officers information about Cushman or details about who specifically shot the moose, Huckabay accompanied a third officer to the area where the moose had been killed. There was “considerable blood” and some moose hair on the lawn of the “kill site,” and Huckabay pointed out where the moose had been lying when he arrived on the scene to collect the carcass. Meanwhile, that same afternoon, two enforcement officers obtained Cushman’s address and visited his residence. Cushman has been a butcher in the area for years, and has a butcher shop and walk-in cooler on his property. He often permits customers and friends to use the walk- in cooler and cutting room. With Cushman’s permission, the officers checked inside the cooler and found a skinned and quartered cow moose, which lacked the requisite tag. The officers also noted that the carcass was still “very warm,” showing it had only recently been placed in Cushman’s cooler. Cushman told the officers he did not know how the carcass came to be in his cooler. The officers took photographs and samples, with tests later confirming that the meat and blood samples from the carcass, kill site, and Cushman’s truck all came from the same cow moose. On March 1, 2017, a grand jury indicted Huckabay for felony unlawful killing or possession of a moose in violation of Idaho Code sections 36-1404(c)(3) and 36-1404(a)(2). Huckabay’s indictment charged him with “UNLAWFUL KILLING OR POSSESSION OF A MOOSE, Idaho Code § 36-1401(c)(3), § 36- 1404(a)(2), a Felony,” committed on October 2, 2014. Huckabay moved to dismiss his indictment, arguing the evidence was insufficient to establish probable cause and the indictment lacked essential elements of the crime. He also filed additional motions to challenge a lack of jurisdiction. Each of these issues hinged on his argument that the plain language of Idaho Code section 36-1404(c)(3) requires more than one 2 animal to warrant a felony charge. The district court denied Huckabay’s motions, finding that the indictment was sufficient to establish probable cause that Huckabay possessed the moose even if there was insufficient evidence to establish he killed the moose in question. The State then amended the indictment to read: “That the Defendant, JOHN ALLISON HUCKABAY, on or about October 2, 2014, in the County of Kootenai, State of Idaho, did unlawfully possess a wild animal with a single damage assessment of more than one thousand dollars ($1,000.00), to-wit: A cow moose in a closed season and/or without a tag, . . . ” Huckabay sought to dismiss the amended indictment, still arguing that a single moose did not constitute a felony violation under Idaho law, but the district court again denied his motion. Huckabay also filed a motion for permission to appeal the statutory interpretation and vagueness issues. This was also denied. The district court explained that the law plainly permitted a felony where the damage value assessment exceeded $1,000, including where a single animal had been killed or possessed. The case proceeded to a two-day jury trial and on February 7, 2018, the jury found Huckabay guilty of unlawful possession of a moose in violation of Idaho Code section 36- 1401(c)(3). Huckabay immediately filed a motion to dismiss, which was denied. The district court sentenced Huckabay with a $1,500 civil penalty, imposed a $25,000 fine, revoked his Idaho hunting and fishing license for three years, and set a prison sentence of one year fixed, one year indeterminate, which was suspended for two years. The district court then placed Huckabay on probation and ordered him to serve 30 days of local incarceration within three months of sentencing. Huckabay timely appealed his conviction. The case first came to the Idaho Court of Appeals, which held “that I.C. § 36-1401(c)(3) requires the unlawful killing, possessing, or wasting of more than one animal to constitute a felony offense.” State v. Huckabay, No. 46085, 2020 WL 597047 , at *1 (Idaho Ct. App. Feb. 7, 2020), review granted (June 23, 2020). Its decision centered on interpreting the language of the statute to mean “two or more” numbers or species of wildlife. Id. at *4. Thus, the court concluded, the district court erred in construing the statute and should have granted Huckabay’s motion to dismiss. Id. at *1. The Court of Appeals then reversed the district court’s order and vacated the judgment of conviction. Id. The State timely petitioned this Court for review. II. STANDARD OF REVIEW Where a case comes before this Court on a petition for review, we give “serious consideration to the views of the Court of Appeals, but directly review[] the decision of the 3 lower court.” State v. Purdum, 147 Idaho 206 , 207, 207 P.3d 182 , 183 (2009) (quoting State v. Oliver, 144 Idaho 722 , 724, 170 P.3d 387 , 389 (2007)). The rules of statutory interpretation are well established. Statutory interpretation is a question of law freely reviewed by this Court. State v. Burke, 166 Idaho 621 , ___, 462 P.3d 599 , 601 (2020). We interpret a statute with its literal language to “giv[e] words their plain, usual, and ordinary meanings.” Id. However, a statutory provision is not interpreted in isolation; rather, it is interpreted “within the context of the whole statute.” Id. This means we give effect “to all the words and provisions of the statute so that none will be void, superfluous, or redundant.” Id. When applying these criteria, “we must also remember that ‘statutes which are in pari materia are to be taken together and construed as one system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions.” State v. Lantis, 165 Idaho 427 , 429, 447 P.3d 875 , 877 (2019) (quoting City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579 , 583, 416 P.3d 951 , 955 (2018) (internal citation omitted)). In addition, this Court does not implement the rules of statutory construction unless the language is ambiguous, which occurs where “reasonable minds might differ or be uncertain as to [the statute’s] meaning.” City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho at 582 , 416 P.3d at 954. III. ANALYSIS The key issue on appeal is whether Idaho Code section 36-1401(c)(3) requires the possessing of two or more animals to constitute a felony violation. Both parties argue that the statute is plain and unambiguous. We agree with the State that the statute is a broad and inclusive prohibition of the unlawful killing, possessing, or wasting of any wildlife where the reimbursable damage assessment exceeds $1,000. Title 36, chapter 14 of the Idaho Code enumerates the general penal provisions for violations of the state’s fish and game laws. The statute under which Huckabay was charged establishes the requirements for a felony violation where there is unlawful killing, possessing, or wasting of wildlife: (c) Felonies. Any person who pleads guilty to, is found guilty or is convicted of a violation of the following offenses shall be guilty of a felony: ... 4  3. Unlawfully killing, possessing or wasting of any combination of numbers or species of wildlife within a twelve (12) month period which has a single or combined reimbursable damage assessment of more than one thousand dollars ($1,000), as provided in section 36-1404, Idaho Code. I.C. § 36-1401(c)(3) (2014). Idaho Code section 36-1404(a) values a moose at $1,500 and a trophy moose at $10,000. I.C. § 36-1404(a). Thus, the possession of any single moose—trophy or not—exceeds the base reimbursable damage assessment required under Idaho Code section 36-1401(c)(3). The question remains, however, whether multiple animals are also required. Importantly, we note that we are reviewing the language of section 36-1401(c)(3) as it existed in 2014 when Huckabay was alleged to have committed his crime. This statute was amended by the Idaho Legislature in 2020 in response to the Court of Appeals decision in this case. See Ch. 216, § 1, 2020 Idaho Sess. Laws 216, eff. March 19, 2020; Statement of Purpose, H.B. 528, Idaho Legis. (Idaho 2020). We note this statutory change only for clarity in the record. The 2020 amendment played no role in the Court’s analysis of this opinion. The interpretation of Idaho Code section 36-1401(c)(3) is an issue of first impression for this Court. In turning to the statute, we read the language as a whole, giving words their plain and ordinary meanings. State v. Burke, 166 Idaho at ___, 462 P.3d at 601. One provision cannot be read to render other sections absurd or superfluous. Id. As a result, we read the “any combination of numbers or species of wildlife” provision alongside the rest of the statute, which specifies that the unlawfully possessed wildlife must have “a single or combined reimbursable damage assessment of more than one thousand dollars ($1,000), . . . ” I.C. § 36-1401(c)(3) (2014) (emphasis added). A “single” damage assessment shows that a felony violation can occur with a single animal, while a “combined” reimbursable damage assessment would only occur in scenarios involving either multiple numbers or species of wildlife. For instance, if two bighorn sheep were unlawfully killed, they would have a combined reimbursable damage assessment with each animal contributing its worth to the total damages. If a single moose were unlawfully killed, it would have a single reimbursable damage assessment exceeding $1,000. Indeed, the reimbursable damage assessments are calculated “per animal killed, possessed or wasted,” under Idaho Code section 36-1404(a) (emphasis added). Thus, the statute as a whole does not focus on the total number of animals possessed or killed, nor the species affected. Instead, section 36- 1401(c)(3)’s language directs to, and relies on, the monetary value of the wildlife killed, 5 possessed, or wasted—an amount that could be achieved by the possession of a single animal— in determining felony status. See I.C. § 36-1401(c)(3) (2014). The need for this value requirement is also highlighted in examples of various poaching scenarios. One such hypothetical was presented by the State to showcase the effects of Huckabay’s interpretation. In that hypothetical, a hunter could kill a trophy moose and common squirrel with very different effects. The death of a trophy moose alone would result in a misdemeanor, despite its singularly high value of $10,000, while the deaths of both a trophy moose and squirrel would result in a felony despite the squirrel’s estimated value at $0. No change is made to the total assessed damages of $10,000 in these scenarios. Rather, only the number of animals killed on the illegal hunt changes. Taking this a step further, a similar analysis shows that a hunter could proceed to hunt down a squirrel ($0), rabbit ($50), duck ($50), and two wild turkeys ($500 total) with only a misdemeanor poaching prosecution to follow, despite the higher variety and numbers of species killed. However, killing either a trophy moose ($10,000) or deer ($2,000), for instance, would raise the charges to a felony under Idaho law. See I.C. §§ 36-1401(c)(3), 36-1404(a). Running through these scenarios emphasizes the statute’s enduring focus on the “single or combined reimbursable damage assessment of more than one thousand dollars ($1,000)” rather than a requirement for a hunter to simply shoot two or more “of any combination” of species. I.C. § 36-1401(c)(3) (2014). Indeed, the provision “any combination of numbers or species of wildlife” is broad language to incorporate all species, in any amount, of valued wildlife as a potential felony violation. See I.C. § 36-1401(c)(3) (emphasis added). The words “combination,” “numbers,” and “species” were used in the plural to expand the statute to include more wildlife, not to exclude a hunter who poaches a single high-value game animal. Thus, the most reasonable reading of the statute permits a felony charge where any number of wildlife—including a single animal—is unlawfully killed, possessed, or wasted, and exceeds a single or combined reimbursable damage value of $1,000. To read the law as Huckabay would creates a situation in which a hunter can be prosecuted only for felony unlawful possession of a moose where he has also possessed a second creature, regardless of its value or lack thereof. Such an interpretation largely disregards the legislature’s carefully enumerated wildlife values and undermines the statute’s value-based scheme. We, however, will not construe 6 a statute to mean something it does not say. Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889 , 895, 265 P.3d 502 , 508 (2011). Both parties also cite a case similar to Huckabay’s situation, State v. Hughes, 161 Idaho 826 , 392 P.3d 4 (Ct. App. 2014), where a hunter moved to dismiss two felony charges for unlawfully wasting and possessing a single trophy mule buck deer. 161 Idaho at 828 –29, 392 P.3d at 6–7. Like this case, the Hughes defendant brought a jurisdictional claim based on the plain language of the statute, arguing that the State failed to set forth facts essential to establish the felony offenses charged. Id. at 829, 392 P.3d at 7. However, the argument in Hughes focused on the plain language of the reimbursable damage assessment lists—one for enumerated wildlife and a second for flagrant violations for killing, possessing, or wasting enumerated trophy big game. Id. at 831–32, 392 P.3d at 9–10. These two separate lists, the Idaho Court of Appeals concluded, required the State to allege a flagrant violation where “the reimbursable damage assessment from the second list [is] to be used in charging a violation under section 1401(c)(3).” Id. Thus, the court rejected the State’s circular reasoning that the charged felony was the required flagrant violation to charge Hughes with a felony violation. Id. at 832, 392 P.3d at 10. The court then affirmed the district court’s dismissal of the felony charges for jurisdictional deficiencies. Id. at 833, 392 P.3d at 10. Huckabay specifically points to the Hughes court’s summary of Idaho Code section 1401(c)(3) to support his argument that the statute requires the taking of multiple animals for a felony violation: In order to state the essential facts of an I.C. § 36–1401(c)(3) violation, the prosecutor must allege that the defendant unlawfully killed, possessed, or wasted any combination of numbers or species of wildlife within a twelve-month period with a single or combined reimbursable damage assessment of more than $1,000. Id. at 832, 392 P.3d at 10. This summary does nothing to clarify the statute. Rather, it simply restates the provision’s language in question. Moreover, Huckabay ignores the court’s additional statements that had the charging documents appropriately alleged a flagrant violation, then the State could have charged Hughes under Idaho Code section 36–1401(c)(3) for the unlawful possession of a single mule deer. If the information had alleged that Hughes killed, possessed, or wasted the mule deer by one of the acts enumerated in I.C. § 36–1402(e)(1–5), then the charged felony under I.C. § 36–1401(c)(3) would be appropriate since the mule 7  deer also qualified as a trophy game animal, thus falling within the $2,000 reimbursable damage assessment. Id. at 833, 392 P.3d at 11. While section 36–1401(c)(3)’s language was not directly interpreted or addressed in Hughes, this assessment showcases the appellate court’s plain reading of the statute to permit a felony where a single trophy mule deer had been killed. In other words, the text was clear to the court—as it is to us—that a single animal’s unlawful possession constitutes a felony because it was valued at over $1,000. We conclude that Idaho Code section 36-1401(c)(3) is plain and unambiguous. In reading the statute as a whole, the law provides a felony violation occurs when wildlife is unlawfully killed, possessed, or wasted and its reimbursable damage assessment exceeds $1,000. Thus, the indictment appropriately charged Huckabay with a felony offense under Idaho Code section 36- 1401(c)(3). While Huckabay raised other jurisdictional and due process issues in his appeal, each of them relied on his incorrect interpretation of the statute. Because our decision regarding the plain interpretation of the statute resolves Huckabay’s additional arguments on appeal, we need not address them. IV. CONCLUSION For the foregoing reasons, we affirm the district court and hold that the plain meaning of Idaho Code section 36-1401(c)(3), as it existed at the time of the offense charged in this case, permitted a felony violation where a hunter unlawfully kills, possesses, or wastes any quantity of wildlife with a reimbursable damage assessment of more than $1,000. Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER, CONCUR. 8

2020-12-03 19:02:59.001068+00

https://isc.idaho.gov/opinions/46107.pdf

IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 46107 STATE OF IDAHO, ) ) Plaintiff-Respondent, ) Boise, August 2020 Term ) v. ) Opinion filed: December 3, 2020 ROBERT JAMES FARRELL-QUIGLE, ) ) Melanie Gagnepain, Clerk Defendant-Appellant. ) Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. John P. Luster, Senior District Judge. The judgment of conviction is vacated and the case is remanded. Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Andrea Reynolds argued. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Mark Olson argued. _______________________________________________ MOELLER, Justice Robert Farrell-Quigle appeals his judgment of conviction for two counts of lewd conduct. He contends that the use of a shielding screen at trial during the testimonies of the alleged victims deprived him of his Fourteenth Amendment due process right to a fair trial, violated his Sixth Amendment right to confront the witnesses against him, and failed to comply with Idaho’s laws on alternative methods for child witness testimony. For the reasons stated below, we vacate Farrell- Quigle’s judgment of conviction and remand the case for a new trial. I. FACTUAL AND PROCEDURAL BACKGROUND In June 2016, Rathdrum police arrested Robert Farrell-Quigle for two counts of lewd and lascivious conduct against two of his daughters, both minors under the age of eight at the time of the alleged crimes. This case concerns the trial testimony of both daughters, referred to as “Older Daughter” and “Younger Daughter.” 1  Leading up to trial, the State filed a motion seeking permission for both daughters to testify by alternative methods to avoid “increased emotional and mental trauma” from testifying in Farrell-Quigle’s presence. In the State’s motion, it proposed that the children be permitted to testify “outside the presence of the defendant via a closed–circuit television (“CCTV”), or in the alternative, the defendant’s presence in the courtroom should be screened from both children.” In support of this motion, the State presented evidence that the daughters would endure “serious emotional trauma” were they to testify in Farrell-Quigle’s presence. A psychiatrist submitted an affidavit explaining that Younger Daughter would suffer serious trauma that would impair her ability to testify if she had to do so in the presence of her father. At the hearing on the motion for testimony by alternative means, Older Daughter’s supervising social worker also explained that testifying in Farrell-Quigle’s presence “would most likely be a triggering event,” meaning it would be a “trigger” for emotional and physiological responses that could have a lasting impact “as re- traumatizing as the original event.” At the hearing on the motion, the prosecutor suggested several potential plans, including witness entry through an alternative door, rearranged seating, or the placement of a barrier between Farrell-Quigle and his daughters on the witness stand. Farrell-Quigle objected to allowing the testimony of either daughter by alternative means, arguing that the State (1) had yet to lay out a specific plan for the daughters to testify, and (2) had failed to establish by clear and convincing evidence that the daughters would suffer serious emotional trauma by testifying in Farrell-Quigle’s presence. The district court reserved ruling on the motion, explaining its concerns with safeguarding Farrell-Quigle’s due process rights and its desire to adopt a concrete plan, preferably by using CCTV: I would certainly be concerned if we had a jury walk in and had some kind of a setup that made it look like the child -- the innocent, truthful child is being protected from the evil, guilty defendant, that that’s -- and that’s an oversimplification of the problem, but that is a concern and I think [defense counsel] was attempting to address it. We need to figure out exactly how we can do this. And so I’m going reserve ruling on this. . . . I don’t know if we can explore the [CCTV] testimony method in some fashion, but certainly the Court is open to any number of possibilities in that regard. I’m sure that you might even communicate further with the court or the trial court administrator in terms of the district court being able to provide some kind of funding or solicit the service from a reporting agency something to set this up. I know we don’t have anything available directly with the court system itself, but that doesn’t mean that we can't retain the services from one 2  of the local reporting agencies to set some kind of a [CCTV] arrangement up that would then be palatable for the Court. After examining the assigned courtroom, the State proposed a plan for the daughters to enter the courtroom through a side door in the northwest corner of the courtroom. A projector screen would be set up in front of the defense table, blocking those on the witness stand from viewing the defendant, and the defendant from viewing the witness. There was to be no mention of the screen’s presence or attention drawn to it. The district court did not hold another hearing on the motion; instead, further arguments and concerns were reserved until the trial commenced. On the first day of trial—outside the presence of the jury—the district court informed the parties it had contacted the federal courthouse regarding use of its CCTV as an alternative method of testimony for the daughters. However, no arrangement was made to utilize a federal courtroom at that time. At the conclusion of the first day of trial, the district court informed the jury that the following day could have “a little confusion” regarding courtrooms and the presentation of testimonies. The next morning, the district court examined the setup for the daughters’ testimony arranged by the State in a courtroom in a different courthouse. The State had placed a 48 by 40 inch piece of blank, white cardboard on an aluminum easel to act as a screen between the defendant and the witness stand. The screen was perpendicular to the wall and placed in such a manner that it blocked only a portion of the defense table, thereby keeping Farrell-Quigle in full view of the judge, jury, and prosecution, while shielding witnesses from viewing him as they entered the room and sat on the witness stand. The district court described the screen and easel as “simply some courtroom equipment, basically, an aluminum tripod that has a large board that might be used to demonstrate an exhibit in front of the jury, and it seems basically to be shoved out of the way to one corner up against the wall.” Defense counsel, the jury, and judge all still had a view of the witness stand and all other areas of the courtroom. A diagram of the courtroom arrangement and a photo depicting it are shown below. 3  Augmented Record, page 8. Farrell-Quigle objected to the use of the screen, arguing it created a prejudicial effect by treating the defendant differently from the rest of the court participants. In addition, Farrell-Quigle argued that the preferred means of alternative testimony would be through CCTV, which had been expressly approved by the Idaho Supreme Court in State v. Baeza, 161 Idaho 38 , 383 P.3d 1208 (2016). The State countered that scheduling conflicts prevented use of the federal courtroom—the CCTV was only available in the afternoon while the daughters were scheduled to testify in the morning. However, there were no findings as to why the daughters could not have testified in the afternoon. In addition, the State argued that the screen was “not at all obvious” in blocking the defendant from the witnesses, and that problems could arise by trying to shout questions or show the daughters exhibits through CCTV. Notably, however, no exhibits were shown to the daughters during their testimony. After hearing arguments from both sides, the district court approved the use of the shielding screen in the courtroom, but still expressed an overall preference for using 4 CCTV. To explain the courtroom change, the bailiff informed the jury there were scheduling conflicts at the courthouse. When the trial resumed, the screen was placed directly between Farrell-Quigle and the witness stand for the duration of both daughters’ testimony. During Younger Daughter’s testimony, her treating psychiatrist, Dr. Carlisle, sat near the witness stand for emotional support, using a chair in front of the clerk’s stand. Both daughters were eleven years old at the time of the trial. During a recess after the daughters finished testifying, the State turned the easel sideways 90 degrees so that the shielding screen was parallel with the wall. Although the easel remained in the same general location, the shielding screen no longer blocked anyone on the witness stand from viewing Farrell-Quigle. Nothing was ever said or done in front of the jury to deliberately bring attention to the screen. That afternoon, a subsequent witness entered through the northwest door, like both daughters, to maintain consistency of the procedure used before the jury. In addition, the trial concluded on the third day in this same courtroom, as the district court explained, “[s]o it doesn’t look like we just came here for a limited number of witnesses.” At the conclusion of the trial, the jury found Farrell-Quigle guilty on both counts of lewd conduct. The district court sentenced him to serve twenty-five year concurrent sentences on both counts with twelve years fixed. Farrell-Quigle timely appealed. II. STANDARD OF REVIEW This case primarily concerns rights protected under the Sixth and Fourteenth Amendments to the U.S. Constitution, as well as the procedural safeguards contained in Idaho Code section 9- 1806. This Court freely reviews constitutional issues, which are questions of law. State v. Baeza, 161 Idaho 38 , 40, 383 P.3d 1208 , 1210 (2016). Likewise, as with questions of law, the Court exercises free review over questions of statutory interpretation. State v. Leary, 160 Idaho 349 , 352, 372 P.3d 404 , 407 (2016). III. ANALYSIS A. The use of a shielding screen deprived Farrell-Quigle of his Fourteenth Amendment due process right to a fair trial. Farrell-Quigle argues the use of the shielding screen deprived him of his Fourteenth Amendment right to a fair trial because it implied his guilt and a need to protect the child witnesses from him. In addition, Farrell-Quigle contends that had CCTV been utilized, it would have been 5 less prejudicial while more effectively protecting the physical and psychological wellbeing of both children. “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Estelle v. Williams, 425 U.S. 501 , 503 (1976). Although the presumption of innocence is not among the rights of the accused enumerated in the text of the U.S. Constitution, it is a core component of a fair trial in the criminal justice system. Id. See also Coffin v. United States, 156 U.S. 432 , 453 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). When it comes to trial practices that may adversely affect the rights of the accused at trial, it has been observed that although “[t]he actual impact of a particular practice on the judgment of jurors cannot always be fully determined,” there is “no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny.” 425 U.S. at 504 . “Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” Id. Where this Court “finds an ‘inherently prejudicial practice,’ the Court considers whether it is ‘justified by an essential state interest specific to each trial.’ ” State v. Baeza, 161 Idaho 38 , 41, 383 P.3d 1208 , 1211 (2016) (quoting Holbrook v. Flynn, 475 U.S. 560 , 568–69 (1986)). Therefore, to evaluate Farrell-Quigle’s Fourteenth Amendment claim, this Court must: (1) “closely scrutinize” whether the screen used by the district court was inherently prejudicial; and, if so, (2) whether the screen nonetheless served an essential state interest, which justified its use. 1. The shielding screen was inherently prejudicial. We held in State v. Baeza that “inherent prejudice is found where the practice in question may have a direct impact on the jury’s perception of the defendant.” Id. Here we must assess whether the presence of the screen used to shield Farrell-Quigle’s daughters from seeing him during their testimony may have directly influenced the way jurors viewed Farrell-Quigle. Our analysis must account for what jurors were most likely to infer from the courtroom setup, including whether those inferences were so wide ranging as to dampen any prejudicial effect. For example, in Holbrook v. Flynn, the U.S. Supreme Court held that the presence of four uniformed state troopers in the courtroom was not inherently prejudicial because of “the wider range of inferences that a juror might reasonably draw from the officers’ presence.” 475 U.S. at 569 . The U.S. Supreme Court explained: 6  To be sure, it is possible that the sight of a security force within the courtroom might under certain conditions create the impression in the minds of the jury that the defendant is dangerous or untrustworthy. However, reason, principle, and common human experience counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial. In view of the variety of ways in which such guards can be deployed, we believe that a case- by-case approach is more appropriate. Id. (internal citations and quotation marks omitted). This case-by-case approach has resulted in our sister jurisdictions viewing the use of shielding screens in multiple ways under the Fourteenth Amendment. For example, the Michigan Court of Appeals concluded that a shielding screen, like the uniformed troopers in Flynn, could conjure a wide array of inferences. People v. Rose, 808 N.W.2d 301 , 315–17 (Mich. App. 2010). Rose extrapolated from Justice Blackmun’s dissent in Coy v. Iowa, 487 U.S. 1012 (1988), a U.S. Supreme Court case concerning a shielding screen that did not reach the Fourteenth Amendment in the majority opinion. Justice Blackmun wrote that a screen is not inherently prejudicial because, unlike shackles or prison garb, a screen is not a symbol of conviction for a crime. Id. at 1034-35 (Blackmun, J., dissenting)). The Michigan Court of Appeals agreed that a shielding screen, unlike such obvious marks of guilt, could be interpreted a variety of ways by jurors, especially where child witnesses are involved, because juries expect child witnesses to be fearful of the person against whom they are testifying. Rose, 808 N.W.2d at 316 –17. They went on to suggest that a shielding screen might be viewed as a tool to calm general anxiety rather than to protect a child from a particular, guilty defendant. Id. Contrast this with the Nebraska Supreme Court’s decision in State v. Parker, in which that court found a shielding screen placed between a testifying child witness and a defendant was inherently prejudicial because the defendant’s guilt hinged on the truthfulness of the child’s testimony, and the screen reasonably appeared to be the court’s implicit endorsement of that witness’s truthfulness. State v. Parker, 757 N.W.2d 7 , 18 (Neb. 2008), opinion modified on denial of reh’g, 767 N.W.2d 68 (2009). The Nebraska Supreme Court found that, under circumstances where the jury was being asked to assess the veracity of the child witness’s story, there could be no other innocuous explanation for the screen than that the court had sided with, and was protecting, the child. Id. This Court has previously considered the problem of inherent prejudice in alternative methods of testimony for child witnesses. Thus, our decision here must be informed by our 7 previous finding in State v. Baeza that “child-friendly” practices, which center on comforting the child, rather than protecting the child from the defendant, are not inherently prejudicial. 161 Idaho at 42 , 383 P.3d at 1212. There, we found the use of CCTV was not inherently prejudicial because its “child-friendly” focus was on the status of the child witness as a child—she was also given crayons, a coloring book, and a child-friendly oath—rather than as a victim who needed protection from the menacing presence of a “guilty” defendant. 161 Idaho at 42-43 , 383 P.3d at 1212-13. Although the trial court in Baeza also instructed that the camera be set up in such a way the child would not have to see the defendant, the jury had no way to know that. As far as the jury could see, the defendant was treated no differently from anyone else in the courtroom in relation to the child. Id. I t is noteworthy that our decision in Baeza also came with a warning about setting up the courtroom in a way that singled out a defendant. Id. at n.2. The defendant had suggested simply moving the witness chair so the child witness would not have to see him. Id. However, we found that suggestion problematic, noting “that such a procedure would have a far greater potential for damage to the defendant’s presumption of innocence, as it might suggest to the jury that the court had determined that the child witness required some form of protection from viewing the defendant.” Id. The district court in Farrell-Quigle’s case appeared to be well aware of the concerns raised in that warning, initially saying about the State’s proposal to use a screen, “I would certainly be concerned if we had a jury walk in and had some kind of a setup that made it look like the child— the innocent, truthful child is being protected from the evil, guilty defendant . . . .” At that time, the district court stated a clear preference for using CCTV as the alternative method of testimony and expressed a clear discomfort with the use of a screen. In fact, the district court went so far as to look into the use of CCTV on behalf of the State, even though the State bore that burden. Only when a scheduling conflict made the use of CCTV inconvenient did the district court acquiesce to the State’s plan to use a screen, which the State had already arranged for in a nearby courthouse. In agreeing to the use of the screen, the district court described the innocuousness of the setup, saying it appeared to be “simply some courtroom equipment, basically, an aluminum tripod that has a large board that might be used to demonstrate an exhibit in front of the jury, and it seems basically to be shoved out of the way to one corner up against the wall.” The district court noted its earlier concern that the jury would view the setup as “shielding the child from the defendant 8 and leading to some kind of inference of guilt.” Ultimately, however, the district court concluded that the screen satisfied due process concerns, ruling from the bench that, even if “the astute juror” noticed the screen was shielding the defendant from the child witness’s view, it would not create an “overwhelming unfair imposition of prejudice.” The court averred that, in the context of a sexual molestation case involving a father, the “common sense juror” would likely view the shield as easing an “awkward situation.” We give deference to the trial court’s finding of facts, including its assessment that the screen in the courtroom was unobtrusive. However, the district court’s determination that the use of the screen would not create an “overwhelming unfair imposition of prejudice” creates a higher standard for finding prejudice than the Fourteenth Amendment test articulated by the U.S. Supreme Court in Estelle, and adopted by this Court in Baeza. For example, we held in Baeza that inherent prejudice exists where a practice “may have a direct impact on the jury’s perception of a defendant.” 161 Idaho at 41 , 383 P.3d at 1211. Thus, the defense does not need to show the prejudice would be “overwhelming;” rather, it need only show that the use of the shielding screen “may have” directly affected how the jury viewed the defendant. Therefore, we consider de novo the Fourteenth Amendment analysis of whether the shielding screen used in Farrell-Quigle’s trial may have affected jurors’ perceptions of him. Here, the jurors were told that, due to a scheduling conflict, the remainder of the trial would be held in a different courtroom in a neighboring courthouse. In that new courtroom, a screen—a large, blank piece of white cardboard placed on an aluminum easel—had been placed perpendicular to a wall between the witness stand and the defendant’s seat, so as to appear to jurors as something casually set aside from another trial. The screen prevented the defendant and the two child witnesses testifying against him from seeing one another. The record indicates that from the seats directly across from it in the jury box, the screen may have been placed at such an angle as to render it somewhat inconspicuous. However, a fair review of the diagrams and photographs of the courtroom layout in the record, including those depicted above, reinforces the view that the presence of the screen—and its true purpose and effect—would have been obvious to the jurors, especially those seated at either end of the jury box. In hopes of not calling attention to the screen, it was left in place for the remaining two days of the trial. However, the screen was turned parallel with the wall after the daughters testified so as to avoid blocking the defendant and subsequent witnesses from seeing one another. 9  A key moment in any criminal jury trial is when accuser and accused face each other in court, and to be sure, jurors watch and assess that encounter with heightened interest. Here, the jurors knew the defendant’s daughters had entered the courtroom to testify about the acts of lewd conduct they claimed he had committed against them. Again, it goes against “reason, principle, and common human experience” to believe that at least some jurors did not lean forward to study and scrutinize the defendant and his daughters’ respective demeanor and how they reacted to seeing each other at this moment of the trial. At that point, it would have become obvious— assuming it was not obvious already—that the screen was serving as a shield that prevented the witness and defendant from observing one another. If the purpose of the screen were not clear enough during the daughters’ testimony, then the point would have been further emphasized when jurors returned from a recess after the daughters had finished testifying only to find the shielding screen had been turned and moved flush against the wall so the defendant and the remaining witnesses could regard one another. Again, “reason, principle, and common human experience” suggest that at least some members of the jury would have surely discerned what was going on, no matter how adeptly the plan was executed. Although it appears likely that all of the jurors would have observed the screen, no one can say with certainty what inferences the jurors actually drew when they saw it. Nevertheless, this Court must acknowledge how reasonable—how human—it would have been for any or all of the jurors to comprehend that the screen was blocking the view of the defendant from the witnesses and that, given the nature of the conflict between those parties, it had been placed there on purpose by the district court to protect the young witnesses from the trauma of seeing the defendant. Thus, despite the district court’s well-intentioned efforts to avoid treating the defendant differently, different treatment is very likely what jurors perceived, and so the setup becomes exactly that which we cautioned against in Baeza. We acknowledge that a possibility remains that jurors could have made a wider array of inferences about the screen, including that it was a “child friendly” prop meant generally to make testifying more comfortable for the children. As noted by the Michigan Court of Appeals in Rose, jurors might expect any child appearing in court to be nervous, especially while in the presence of the person they are accusing of a crime. However, this Court’s warning in Baeza contradicts that viewpoint, expressing a need to be more critical of any circumstances that single out a defendant for disparate treatment during a jury trial. Even if jurors viewed the screen as a comfort measure, 10 it was still a measure that pointed at the defendant alone as the source of the child’s discomfort and fear. Such a procedure fails the test in Baeza because it would unavoidably lead to inferences by the jury that were inherently prejudicial to the defendant. The screen’s prejudicial effect is also self-evident from the discussion the district court had with counsel about giving a jury instruction to explain the presence of the screen. The district court cautioned the defense: “I don’t need to do anything that would draw undo attention to the situation that may otherwise be avoided if we ignore it.” Ordinarily, Farrell-Quigle would have been free to request an instruction to jurors admonishing them to give no weight to any child-friendly practices used during the trial, such as the psychiatrist who sat next to Younger Daughter or the presence of a comfort animal or toy. However, the district court could not do so here because it would contradict the supposed happenstance of the screen’s appearance in the courtroom—tipping off jurors that the scheduling conflict and the courtroom switch, coupled with the failure to acknowledge the screen that blocked the defendant from view, were due to the district court’s own machinations. This points to how precariously the protection of Farrell-Quigle’s rights rested on the hope jurors would simply not pay close attention to what they were seeing—literally right in front of them. We cannot support a practice that is based on the mere hope that trial jurors are neither alert nor perceptive. In fact, history teaches us that the opposite is true. We acknowledge the dissent’s robust defense of judicial discretion and deference to the district court. The dissent has helpfully included extensive excerpts from the record to illustrate the findings to which it believes we owe deference. However, we respectfully disagree that the district court made any definitive findings to which deference is owed. For example, the district court’s oral ruling made no findings about whether, from the perspective of the jurors’ seats, a juror could discern that the screen was purposely placed to shield the defendant from the victims’ view. In fact, the district court did not use the word “find” once in its oral ruling quoted by the dissent. Rather, the court repeatedly spoke in the language of conjecture: “it appears to me,” “it looks,” “it seems,” “the [c]ourt does not feel,” “I don’t like,” “I think,” and “I don’t think.” It is not overly fastidious to conclude that such speculative terminology is not the equivalent of a finding of fact. Simply put, appearances, feelings, preferences, and thoughts do not constitute a finding of fact. Rather, “[a] finding of fact is a determination of a fact supported by the evidence in the record.” Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72 , 77, 156 P.3d 573 , 578 (2007) (emphasis added) (citing Black’s Law Dictionary 284 (2d Pocket ed. 2001)). 11  Although “[w]e give due deference to any implicit findings of the trial court supported by substantial evidence,” the photographic evidence in the record does not support the district court’s observations about the impact of the screen on jurors. State v. Yager, 139 Idaho 680 , 684, 85 P.3d 656 , 660 (2004). The photographs and diagrams of the courtroom, including those set forth above, show that the shielding screen was visible to any juror, especially those seated on the far edges of the jury box. The district judge acknowledged this: “I agree with [defense counsel] that the astute juror might note that things are set up in such a fashion that may screen off the defendant’s view of – these children testifying against him.” Even if we treat the district court’s statement that the impact of the shielding screen was “miniscule” as a finding of fact, that finding would still be subject to a clearly erroneous standard that it could not survive. Bolger v. Lance, 137 Idaho 792 , 794, 53 P.3d 1211 , 1213 (2002) (“A trial court’s findings of fact will not be set aside unless clearly erroneous, which is to say that findings that are based upon substantial and competent, although conflicting, evidence will not be disturbed on appeal.”). After carefully reviewing the photographic evidence in the record, we hold that the district court’s observation that the shielding screen was “relatively a miniscule interference” was clearly erroneous. From the vantage of at least some jurors, the shielding screen’s purpose in obstructing the victims’ view of the defendant would have been obvious and prejudicial. We recognize that the district court was faced with the unenviable task of protecting two young and vulnerable witnesses, while simultanteously balancing the defendant’s constitutional rights. We also note that the district court earnestly wrestled with this difficult problem—one that was certainly not of its own making. Nevertheless, the Fourteenth Amendment requires us to exercise “close judicial scrutiny” in reviewing the procedures utilized in this case. Estelle, 425 U.S. at 503 . After applying close scrutiny, we conclude that the plan approved by the district court did not meet the standard for protections under the Fourteenth Amendment. Instead, it more than likely signaled to the jury that something strange was afoot. The courtroom configuration authorized here was not a routine courtroom arrangement. The placement of the screen would have prompted any attentive juror to wonder why the witnesses’ view of the defendant had been blocked without any acknowledgement. The potential impact is all the more troubling given that the State’s case against Farrell-Quigle rested heavily on the jury’s determination that the daughters were telling the truth. In sum, we conclude that the use of the shielding screen may have been reasonably 12 perceived by jurors as an attempt to protect the children from a guilty or dangerous defendant. Accordingly, we hold that the use of a shielding screen in this case was inherently prejudicial. 2. The shielding screen did not serve an essential state interest. Even though we have concluded that the shielding screen used here was inherently prejudicial, the use of the screen may nonetheless be permissable under the Fourteenth Amendment if the inherent prejudice is outweighed by an essential state interest. Neither party disputes that the well-being of children is an essential state interest. However, Farrell-Quigle argues this Court must also consider whether a better, less prejudicial method of testimony was reasonably available. We agree that permitting an alternative method of testimony that creates inherent prejudice cannot be justified under the Fourteenth Amendment due process clause where the record demonstrates that a less prejudicial method was reasonably available. Showing a likelihood of trauma to a testifying child is generally sufficient to establish the necessity of an alternative method of testimony. The U.S. Supreme Court held in Maryland v. Craig that “if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” 497 U.S. 836 , 855 (1990). Likewise, Idaho’s Uniform Child Witness Testimony by Alternative Methods Act, Idaho Code sections 9-1801-1808 (“the Act”), emphasizes a similar state public policy interest in protecting children who testify, and permits alternative means of testimony where “the child would suffer serious emotional trauma that would substantially impair the child’s ability to communicate with the finder of fact if required to be confronted face-to-face by the defendant.” I.C. § 9- 1805(1)(b). For purposes of the Act, a “‘Child witness’ means an individual under the age of thirteen (13) years who has been or will be called to testify in a proceeding.” Idaho Code § 9-1802. Neither party disputes the necessity of using an alternative means for Younger Daughter’s testimony.1 Thus, for the purposes of this analysis, the necessity for alternative means of testimony was proved. In addition to establishing the likelihood of trauma that would inhibit a minor victim’s ability to testify, the Act also requires courts to use a narrowly tailored approach in considering 1 We need not reach whether necessity was adequately proved regarding Older Daughter’s testimony because the use of the screen during Younger Daughter’s testimony is sufficient to vacate Farrell-Quigle’s conviction. 13 the particular alternative method of testimony chosen over others. Idaho Code section 9-1806 lists a variety of factors to be considered: (1) Alternative methods reasonably available; (2) Available means for protecting the interests of or reducing emotional trauma to the child without resort to an alternative method; (3) The nature of the case; (4) The relative rights of the parties; (5) The importance of the proposed testimony of the child; (6) The nature and degree of emotional trauma that the child may suffer if an alternative method is not used; and (7) Any other relevant factor. Similarly, Idaho Code section 9-1807(3) requires that the alternative method “be no more restrictive of the rights of the parties than is necessary under the circumstances to serve the purposes of the order.” These statutory requirements are a recognition of the constitutional duty of courts to consider the rights of all parties involved and how the alternative method chosen stands in comparison to other methods that were reasonably available. This balance is reflected in our decision in Baeza, where we determined the use of CCTV was not inherently prejudicial, and further reasoned “the remote possibility” of lurking prejudice caused by the use of CCTV “was outweighed by an essential state interest.” Id. at 43, 383 P.3d at 1213 . As noted above, we found CCTV to be a “child friendly” method that did not call attention to the defendant. Therefore, as long as the State showed the necessity of using an alternative method of testimony for a child, we found the use of CCTV to be permissible under the Fourteenth Amendment. On the other hand, we warned in Baeza that an arrangement in the courtroom which protected a witness from seeing the defendant, but treated the defendant differently than other witnesses, “would have a far greater potential for damage to the defendant’s presumption of innocence, as it might suggest to the jury that the court had determined that the child witness required some form of protection from viewing the defendant.” Id. at n.2. The words “far greater potential” suggest a known hierarchy—one which places CCTV in a superior position over methods like the shielding screen used here, which single out a defendant. Thus, constitutional considerations reflected in section 9-1807, as well as in our warning in Baeza, require us to consider whether the use of the screen and the accompanying deprivation of rights were narrowly tailored to the needs of this trial. 14  Here, the district court only addressed the different levels of protection against emotional trauma—i.e., those factors that had established the necessity of an alternative method in the first place—afforded by the use of a shielding screen versus CCTV. The district court stated that trauma “probably could be eliminated better through the closed-circuit TV . . . .” However, the court also noted that having the children in the courtroom would make it easier to “get a better feel for [their] responses . . . .” Thus, the district court erred by failing to focus on whether the use of the screen was narrowly tailored to both the needs of the witnesses and the due process rights of the defendant. Importantly, the State failed to offer any reasons why the use of the shielding screen would be more narrowly tailored in this case than CCTV. Instead, the State asserted three reasons for its preference for using the screen over CCTV: (1) inconvenient timing—the CCTV was only available in the afternoon, and the daughters were scheduled to testify in the morning; (2) a concern that questions would have to be “shouted” to the witnesses over CCTV; and (3) a concern that it would be difficult to show the witnesses exhibits over CCTV and have them describe where they had been touched. In regards to the State’s second and third concerns, the State offered no explanation as to why it would have been necessary to shout to communicate, nor what the exact difficulty would be with exhibits. In the end, the State did not use any exhibits during the daughters’ testimony, nor did the State offer an argument as to why these concerns should outweigh the risk to the defendant’s rights that might occur with the use of the screen. The State’s first concern, and the decisive factor in the district court’s decision to allow the use of the shielding screen, seems to have been timing, and that is what is most troubling. The district court acquiesced to the screen primarily because of a failure in planning on the part of the State. The record suggests that no one attempted to make arrangements for CCTV until the day before the scheduled testimony—and that attempt was initiated by the district court. By then, the CCTV-capable courtroom was only available in the afternoon of the following day, and the daughters were apparently scheduled to testify in the morning. In the meantime, the State had gone ahead and set up in a different courtroom in another courthouse with the shielding screen so defense counsel and the district court could look it over. It is unclear from the record whether at this time the daughters were at the courthouse, still at home, or on their way. Certainly, in the midst of a trial, there existed a risk that rescheduling the daughters’ testimony might cause them added stress, as well as be an inconvenience to the jury. Nevertheless, the State in no way demonstrated, nor did the district court find, that keeping the testimony on schedule was a component of its 15 interest in protecting the well-being of the children. Even more critically, there was no finding that these timing pressures outweighed the potential deprivation of Farrell-Quigle’s due process rights. It is undisputed that the use of an alternative method of testimony was necessary for Younger Daughter. However, the district court’s decision to use the shielding screen instead of CCTV, which this Court had previously found does not result in inherent prejudice where necessity has been shown, was at its core a decision borne out of convenience. Convenience alone cannot outweigh a defendant’s constitutional rights. Given the technological advancements in video conferencing available in 2017, when this case went to trial, it is difficult to understand why arrangements were not made for the remote testimony of the child witnesses, via CCTV or an alternate form of video conferencing technology, well before trial. Here, the CCTV procedure was reasonably available, even if the delay in scheduling a courtroom made it inconvenient. Therefore, we conclude that the State did not meet its burden to demonstrate a compelling state interest outweighed the inherent prejudice caused by the use of the shielding screen, especially where a less prejudicial alternative was available. 3. This case illustrates the need for a bright-line rule. At the time of Farrell-Quigle’s trial in 2017, this Court had already issued our decision in Baeza and expressly approved the use of CCTV as an alternative method of testifying that, so long as the State proved there was a compelling state interest, would not violate a defendant’s rights under the Fourteenth Amendment. However, we did not entirely foreclose the possibility that other practices might also satisfy the Fourteenth Amendment test. A number of factors demonstrated by this case, coupled with the significant advances in teleconferencing technology, now persuade us that a bright-line rule is preferable. Such a rule will promote consistency among our state trial courts and remove any uncertainty from judges and attorneys as to which method is constitutionally required. Moving forward, this Court adopts a new rule that upon a showing of a compelling state interest, the only permissible alternative method of testimony for child-witnesses, as defined by Idaho Code section 9-1802, will be one in which the child-witness testifies from a separate location and appears live, on screen in the courtroom, via two-way CCTV or through other reliable video conferencing means. As in Baeza, when such a procedure is utilized, the camera may be set so that the defendant is not seen by the child witness, so long as this would not be evident to the jury. Prior to the child’s testimony, and at the close of evidence, the jurors should be instructed that they 16 should “not give any different weight to [the child witness’s] testimony because of the child- friendly procedures used during her testimony.” 161 Idaho at 40 , 383 P.3d at 1210 (emphasis added). We recognized in Baeza that “child-friendly” practices in which the focus is solely on the witness as a child, as opposed to the accused as a defendant, best protect a defendant’s right to a fair trial. We have identified no other method of alternative testimony that protects those rights as effectively as live witness testimony from a separate location that is viewable on screen in court, as with CCTV. Indeed, unlike a shielding screen, which in the eyes of the jury would appear to serve no other purpose than to protect a child witness from the defendant, CCTV or its equivalent would reasonably appear to protect the child generally from the trauma of testifying in a full courtroom. This case highlights how the absence of a bright-line rule creates uncertainty for our trial courts and may harm child witnesses who, in the event a new trial is warranted, will be forced to endure the difficulties of testifying a second time. A bright-line rule will create such certainty while protecting child witnesses. This rule further supports an essential state interest, as reflected in the Uniform Child Witness Testimony by Alternative Methods Act, which compels courts to consider multiple factors in narrowly tailoring the alternative method of testimony to the needs and rights of the parties. Idaho Code § 9-1806. Today we conclude that properly conducted, live, on-screen testimony via CCTV, Zoom, or other secure and reliable video conferencing technology, best protects against inherent prejudice—while simultaneously promoting an essential state interest—because it does not treat defendants differently from any other person in the courtroom in regard to the child-witness. To be clear, live, in-person witness testimony before the jury, which provides the defendant an opportunity for direct confrontation with the State’s witnesses, should continue to be the norm in criminal trials. Thus, this ruling only applies to the very narrow category of cases involving vulnerable child witnesses under the age of 13, and only when the court finds by clear and convincing evidence that the conditions set forth in Idaho Code section 9-1805(1) have been met. If technological limitations once limited the ability of courts to opt for live, on-screen testimony, that is no longer the case. Secure and reliable platforms for video conferencing are now widely available. Indeed, the COVID-19 pandemic has necessitated that a variety of court proceedings take place via Zoom. This experience has sufficiently demonstrated to us that effective 17 presentation of live testimony from a separate location is now well within the technological reach of any court in Idaho. Given the widespread availability of such technology, this Court can no longer justify supporting alternative methods of testimony that provide lesser protection of a defendant’s right to a fair trial. B. This decision does not reach Farrell-Quigle’s Sixth Amendment or statutory arguments. Because we have decided this case on Fourteenth Amendment grounds and remanded it for a new trial, only a brief discussion is merited as to whether the use of the shielding screen in this trial also violated the Confrontation Clause of the Sixth Amendment or Idaho state law. However, it is instructive to note that although often linked together, the constitutional analyses of the Fourteenth Amendment and Sixth Amendment issues are different in important ways. As previously noted, the Fourteenth Amendment due process analysis requires us to consider whether the alternate method of testifying is (1) “inherently prejudicial” and (2) “justified by an essential state interest specific to each trial.” Holbrook, 475 U.S. at 568 –69. On the other hand, the Sixth Amendment’s Confrontation Clause requires us to determine whether (1) the denial of a face-to-face confrontation at trial “is necessary to further an important public policy” and (2) “the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850 . We observed in Baeza, that “the Confrontation Clause ‘reflects a preference for face-to-face confrontation’ that must ‘occasionally give way to considerations of public policy and the necessities of the case.’ ” 161 Idaho at 43, 383 P.3d at 1213 , quoting Craig, 497 U.S. at 849 . In Idaho, the Uniform Child Witness Testimony by Alternative Methods Act defines both the “essential state interests” and the “important public policy’s considerations” to be followed before implementing an alternative means of testimony for a child witness. Idaho Code §§ 9-1805 and -1806. Thus, the major distinction between the two standards is the 14th Amendment’s requirement of finding “inherent prejudice,” while the Sixth amendment focuses on the “reliability of the testimony.” Where we have already found that the procedure utilized here was inherently prejudicial because it created an appearance of guilt, there is no need for us to determine whether the testimony given while a shielding screen was present was reliable. Additionally, we have already noted our approval of CCTV in the face of a similar challenge in Baeza. C. The State failed to prove harmless error. 18  The State argues in the alternative that any constitutional error was harmless because the screening method employed at trial did not contribute to the guilty verdict and instead provided a better means for fact-finding and confrontation than the CCTV procedure would have. In addition, the State argues that “an appropriate harmless error analysis must consider whether the difference, from the jury’s perspective, between the victim testimony being provided through the screening process utilized at the trial, and the victim testimony being provided through a closed-circuit television system, would have resulted in different verdicts.” However, the State misconstrues the harmless error test. “[A]s a general rule, most constitutional violations will be subject to harmless error analysis.” State v. Perry, 150 Idaho 209 , 223, 245 P.3d 961 , 975 (2010). The harmless error test provides that “once the defendant shows that a constitutional violation occurred, the State has the burden of demonstrating beyond a reasonable doubt that the violation did not contribute to the jury’s verdict.” State v. Adamcik, 152 Idaho 445 , 472, 272 P.3d 417 , 444 (2012). Contrary to the State’s proposed analysis, “the inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275 , 279 (1993). See also Perry, 150 Idaho at 223 , 245 P.3d at 975. Here, the State’s focus on the alleged benefits of the screening procedure over CCTV disregards our previous decision in Baeza and does nothing to alleviate the possibility that the use of the shielding screen contributed to a guilty verdict for the defendant. The State did not prove beyond a reasonable doubt that the guilty verdict was unattributable to the constitutional errors associated with the use of the screen. Thus, this Court concludes that the State failed to prove harmless error. IV. CONCLUSION We conclude that the use of a shielding screen as an alternative method of testimony for child witnesses violated Farrell-Quigle’s right to a fair trial under the Fourteenth Amendment. Therefore, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. Moving forward, this Court hereby adopts a new rule that upon a showing of a compelling state interest, as set forth in Idaho Code section 9-1805, the only permissible alternative method of testimony for child witnesses will be one in which the witness 19 testifies from a separate location and appears live, on screen in the courtroom via CCTV or other reliable video conferencing technology. Chief Justice BURDICK, Justices BRODY and STEGNER CONCUR. BEVAN, Justice, dissenting: The majority opinion today orders a retrial for Robert James Farrell-Quigle because his right to due process was violated by a district court’s decision to allow a “screen” to be placed strategically in a courtroom to protect his two minor daughters from seeing Farrell-Quigle’s face while they testified. I respectfully dissent from this view for two primary reasons: first, a learned trial judge with significant real world trial experience found the screen to be an appropriate means to satisfy a significant state interest – that is, protecting the mental and emotional health of the minor victims who were testifying against their father. Second, I do not believe that this Court’s adoption of CCTV or video conferencing as a “bright-line rule” solves the problems the majority seeks to remedy. A. The procedure followed here did not violate Farrell-Quigle’s due process rights. As an initial point, I would differentiate the standard of review stated by the majority. While I agree that we freely review whether constitutional requirements have been met, we must also defer to a district court’s factual findings supported by substantial evidence. “When a violation of a constitutional right is asserted, this Court will accept the trial court’s factual findings unless such findings are clearly erroneous; however, this Court will freely review whether constitutional requirements have been satisfied in light of the facts found.” State v. Farfan-Galvan, 161 Idaho 610 , 613, 389 P.3d 155 , 158 (2016) (citation omitted). The majority questions the “speculative terminology” used by the district court in reaching its conclusions. Admittedly, the district court’s deliberation process included a fair amount of contemplation along the path to reaching its ultimate conclusion—but as will be shown below, that reflective thought process reveals what we expect of good judges. The court’s findings and conclusions are supported by this record and should be affirmed. The prologue to the ultimate issue here, and the point of dispute between my views and those of the majority is what constitutes a “finding of fact”. Black’s Law Dictionary defines 20 “findings of fact and conclusions of law” as follows: “After a . . . hearing on a motion, a judge’s statement of the facts found to be true and the conclusions of law based on those facts.” BLACK'S LAW DICTIONARY (11th ed. 2019). This Court has given a finding of fact a more expansive definition: “ ‘[a] finding of fact is a determination of a fact supported by the evidence in the record.’ [Whereas a] statement that ‘merely recite[s] portions of the record which could be used in support of a finding’ is not a finding of fact.” Searle v. Searle, 162 Idaho 839 , 846, 405 P.3d 1180 , 1187 (2017) (quoting Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72 , 77, 156 P.3d 573 , 578 (2007)) (internal citations omitted). Crown Point was a case where the Court explained that simple recitation of the testimonies and evidence given did not constitute factual findings. Instead, “they [were] only recitations of evidence which could be used to support a finding without an affirmative statement that the agency is finding the fact testified to.” 144 Idaho at 77 –78, 156 P.3d at 578–79. The district court did not simply recite testimony by others; it made factual findings (as quoted below) based on its direct observation on the placement of the “screen,” and its makeup and potential for prejudice in the courtroom. The court then made a legal conclusion as to the “screen’s” lack of prejudicial effect on Farrell-Quigle. The court’s factual findings are supported by substantial evidence and the legal analysis applied by the court is correct. As a result, the court’s factual determinations regarding the necessity for alternative testimony, as well as the placement and nature of the screen, are entitled to deference by this Court, even if we might disagree with them. In addition, the majority’s characterization of the district court’s decision-making process misstates the detailed and lengthy reasoning progression undertaken by Senior Judge Luster. The majority says that “[o]nly when a scheduling conflict made the use of CCTV inconvenient did the district court acquiesce to the State’s plan to use a screen,” and that “[t]he district court acquiesced to the screen primarily because of a failure in planning on the part of the State.” (Emphasis added). I believe the record shows otherwise. The majority’s statements make it seem as though Judge Luster capitulated to what has now been found an unconstitutional procedure just because scheduling conflicts and the State’s lack of preparation forced him to make the wrong decision. While I am loath to include lengthy block quotes in any legal writing to which I ascribe my name, I am compelled to do so here to counter the undercurrent for this Court’s decision that the able trial judge somehow acquiesced in allowing Farrell-Quigle’s due process rights to be trampled 21 due to a scheduling problem. To provide a full picture, I will quote extensively from the trial judge’s views of the matter, first from his comments during the oral argument on the State’s motion for child witnesses testimony by alternative methods and then during the trial. First, from the pretrial hearing: I think we probably can all agree this is an extremely serious allegation, and so it is one that I think the [c]ourt needs to proceed very cautiously in regard to both the defendant’s rights as well as the concern for the emotional health of the witnesses, and, of course, the relative rights of the party, which I’ve just indicated. .... [I]n theory [an alternate method] sounds fine if we can figure out a way to safeguard the interest of the witnesses and also the rights of the defendant, but we need to figure out how to do that without creating an atmosphere that would be unduly prejudicial to the defendant, because if we could do that, obviously it isn’t going to do any good to have to retry this case because we haven’t done it safely and properly. I would certainly be concerned if we had a jury walk in and had some kind of a setup that made it look like the child – the innocent, truthful child is being protected from the evil, guilty defendant, . . . that is a concern and I think [defense counsel] was attempting to address it. . . . . I still think we need a method that would make the [c]ourt comfortable that the due process concerns that the defendant is entitled to can be properly safeguarded. And I’m not sure what exactly the plan is. I mean, right now we’re talking in theory as to some things we can do, but if we have the jury on one side of the courtroom and a screen right down the middle of the witness here and [defense counsel] is trying to run around, I don’t know how we’re doing that. I don’t know if we can explore the closed-circuit testimony method in some fashion, but certainly the [c]ourt is open to any number of possibilities in that regard. . . . [B]ut then we need to get [a] process in place that would be acceptable to . . . the [c]ourt – to make sure that we have a fair trial for the defendant and one that adequately protects the rights of the children witnesses involved. .... I’m sharing [defense counsel’s] concern. If there’s something electronically that we can set up and it’s just a matter of maybe footing the bill for it, maybe the district court can help in those arrangements, but I don’t know what that is and I think we need to see it so that then we can be comfortable that we can accomplish the goals that we need to accomplish here. .... I’m very cognizant of the fact that we have to tread cautiously, . . . 22 (Emphasis added). Thus, from the outset the judge noted the need to move forward “cautiously” in order to establish a process that would “make sure that we have a fair trial for the defendant . . .” and that “the due process concerns” of the defendant “can be properly safeguarded.” About two weeks later, during the trial, the judge had a chance to observe the screen (which he didn’t even think should be called a screen) in place in the courtroom. The judge then made these findings supporting his choice to implement the alternative method of witness testimony used below: [T]he [c]ourt has articulated, both on and off the record, its concern for due- process considerations in terms of the defendant not being subjected to an environment where there could be some suggestion that would bear on his guilt or innocence absent the consideration of the legally admissible evidence. . . . In Maryland versus Craig, the Court had basically authorized a closed- circuit communication where the child testified and the jury was able to receive the testimony through closed-circuit TV. That particular process could be available to the [c]ourt. The [c]ourt looked into that and discovered that this afternoon the federal court could make their closed-circuit communication devices available for us to use and implement, take advantage of. Yesterday afternoon, I was able to finally take a look at the State’s proposed setup over in the . . . [other] courtroom here . . . . So basically, the conclusion that the [c]ourt had reached, while I recognize that Maryland versus Craig addressed the use of a closed-circuit television that provide the protections that have been delineated under both our statute and the case holding by the United States Supreme Court, alternative methods certainly can be explored and used by the [c]ourt provided the proper safeguards would be in place. I had an opportunity to examine the setup that the State had proposed over at the [other courtroom]. And frankly, it appears to me that the setup probably would provide more safeguards under the law than the closed-circuit television and [sic] for a number of reasons. First of all, my main concern – well, I had three concerns here. My first concern is the emotional trauma that the children might suffer. And frankly, I don’t think it makes any difference, and there’s no presumption here that these children are being honest. That’s not the [c]ourt’s concern. The [c]ourt is concerned with their emotional health. These children could be – their testimony ultimately could be a result of a hallucination. It could be a result of a manipulation by another individual. It could be a result of a manipulation by themselves or it could be a true rendition of what took place. I make no call on that or no assumption on that, but what I do recognize is [sic] the allegations that are in front of the [c]ourt. Allegations of child sexual abuse at the hands of their father are very substantial allegations. And regardless of the veracity of those allegations, these children will be in a difficult emotional position being asked to come into a courtroom and testify. 23  And now that, of course, has been exacerbated by the emotional conditions that’s been reflected in the professional testimony that I’ve already alluded to, but regardless, the child’s safety is one concern that the [c]ourt has. The second concern that the [c]ourt has is the defendant’s right to confront his accuser. And I think that that would be adequately satisfied in terms of the setup that the State has proposed . . . . Essentially what we have, and I know counsel’s looked at it, but in the courtroom there, it is set up in such a fashion that there – I don’t even want to call it a screen necessarily. It looks to the [c]ourt more like simply some courtroom equipment, basically, an aluminum tripod that has a large board that might be used to demonstrate an exhibit in front of the jury, and it seems basically to be shoved out of the way to one corner up against the wall. And it’s positioned in such a way that the individual who’s seated to the far – the [c]ourt’s far left at counsel table would be shielded from direct view from the witness stand. Defense counsel – I think assuming that’s where Mr. Quigle would sit, then defense counsel would have a view of the child to be able to question the child. And frankly, the [c]ourt would extend leeway if [defense counsel] felt that he’d be more comfortable standing up, stretching his legs and getting a little better view of the child when he questioned the child, that’s not a problem. But essentially, it is set up in such a way that it would shield the child’s view. More importantly, from the [c]ourt’s concern for Mr. Quigle’s rights, and that is, is that the [c]ourt does not feel that the setup, as it was demonstrated to the [c]ourt as we will propose to be using it, would indicate in any way some kind of a screen that would send a message to the jury that somehow we’re screening the poor, truthful child away from the guilty defendant. I don’t think that the atmosphere is projected by what’s been objected [as] proposed by the State. And so that third concern of the [c]ourt would appear to be satisfied. Of importance, certainly, from the due-prospect [sic] standpoint, and what I think is probably [an] even better legal alternative method than using the closed-circuit TV, is that the child or children will actually be physically present in front of the jury. They will actually be physically present for the purposes of counsel to question and to cross-examine them. And so the importance of the witness being able to communicate to the finder of fact has certainly been preserved. The only limitation that seems to be imposed by this setup is the fact that Mr. Quigle will not be in a position to directly have face-to-face contact with the two child witnesses as they testify. And I recognize he’s certainly entitled under the Constitution to confront his accusers; however, under Maryland versus Craig, the Supreme Court[] made it clear that that face-to-face confrontation is not absolute provided the [c]ourt makes sufficient 24 findings with respect to the special circumstances that I’ve outlined in this case both under the Uniform Child Witness Testimony Act in the [S]tate of Idaho as well as the holding in Maryland versus Craig. So that is the option the [c]ourt will be utilizing here. .... The screen that is set up in the courtroom downtown is relatively a miniscule interference. I agree with [defense counsel] that the astute juror might note that things are set up in such a fashion that may screen off the defendant’s view of – these children testifying against him. Whether or not that realization would create some kind of overwhelming unfair imposition of prejudice in the case, I think, is rather doubtful. There’s a lot of speculation that we could banter about in terms of what that may or may not mean. Again, I get back to the fact that the nature of this case is a child’s sexual molestation allegation by young girls against their own father. And regardless of whether the defense says that these children are lying or emotionally disturbed or manipulated by their stepmother or whatever else might be at play, a common-sense juror is going to recognize that that is an awkward situation to be in the courtroom with their father, in the same courtroom testifying against their father. And so I don’t think the mere fact that the defendant is shielded from direct view should raise any particular conclusion on the part of the jurors. And so I’m not satisfied that – and, in fact, it might be construed to the contrary, that perhaps it just makes sense for everybody involved, even from the defendant’s standpoint, that he’s – he’s falsely accused but still concerned about his children’s well-being, and that this would be an appropriate way to proceed. And we can get a lot of conclusions that somebody could draw. My main concern earlier was that the structure of this setup was going to be in such a way that it would be obvious to a jury that this situation was shielding the child from the defendant and leading to some kind of inference of guilt. And I don’t think what is proposed at all displayed it. In fact, frankly, I think from the State’s perspective they may be better off proceeding in the other fashion because we still have these two young girls that have to come into the courtroom. They’re only just a matter of feet away from their father when they testify. They’re going to be very aware that he’s sitting there in the courtroom and some of the emotional concerns that we’ve already talked about may still be at play. .... If they’re not being truthful, I think the finder of fact can sense that in live testimony, direct testimony, probably a lot easier than they could through an audio- visual technique. So I don’t like it. I don’t like to have to deal with an alternative, but I think the law provides for it, and this seems to be a situation what would allow 25  for it. And I think the process that is in place [is] as good as I think we can hope to accomplish [ ] under the circumstances. (Emphasis added). With the district court’s rationale plainly stated before us, I would conclude that the able trial judge did much more than just “acquiesce” to the courtroom setup because of convenience or the State’s lack of preparation. The court not only stated its awareness of the need to protect Farrell- Quigle’s due process rights, but noted “importantly, from the [c]ourt’s concern for Mr. Quigle’s rights, . . . that the setup, . . . would [not] indicate in any way some kind of a screen that would send a message to the jury that somehow we’re screening the poor, truthful child away from the guilty defendant.” The court also noted the “importance, certainly, from a due pro[cess] standpoint” that the chosen method was an even better alternative than using closed-circuit TV because the children would actually be present before the jury for both direct and cross- examination. The judge found that the screen was a “miniscule interference,” and stated that “[i]f the [girls are] not being truthful, I think the finder of fact can sense that in live testimony, direct testimony, probably a lot easier than they could through an audio-visual technique.” Finally, the judge did not like having to take any precautions at all: “So I don’t like it. I don’t like to have to deal with an alternative, but . . . I think the process that is in place [is] as good as I think we can hope to accomplish [ ] under the circumstances.” As a former trial judge myself, I appreciate the efforts made here by the trial judge who is in a better position to weigh in the balance the serious, competing interests between the compelling state interest (the children’s mental health) and the defendant’s right to due process, and that the court’s factual findings warrant deference by this Court. Admittedly, we as an appellate court can look at pictures of the courtroom to give ourselves a view of what the “screen” looked like and how the courtroom was setup. We can then make our own conclusions from the quiet solemnity of our chambers regarding what “any attentive juror” might think of the arrangement. That said, those judges who are in the heat of battle, who with reason and lucidity give articulate conclusions to the weighty questions presented before them, are entitled to due regard by this Court in reaching our conclusions. I thus respectfully dissent from the majority’s conclusion that the placement of a screen blocking a child victim’s view of a defendant while they testify in a courtroom is always “inherently prejudicial.” Can such a screen be prejudicial? Certainly. The district court here 26 recognized that if the screen were placed out in the middle of the room, positioned between child witness and the defendant, it could improperly prejudice a reasonable jury against the defendant. But the majority today has created a bright-line rule that discounts the specific facts of this case. “Inherent prejudice is found where the practice in question may have a direct impact on the jury’s perception of the defendant.” State v. Baeza, 161 Idaho 38 , 41, 383 P.3d 1208 , 1211 (2016) (citing Holbrook v. Flynn, 475 U.S. 560 (1986)). The trial judge found that “direct impact” lacking; I would do likewise. In Baeza, this Court recognized that “child-friendly” practices, which center on comforting the child, rather than protecting the child from the defendant, are not inherently prejudicial. Id. at 42, 383 P.3d at 1212 . In holding that CCTV is not inherently prejudicial, the Court recognized many reasons why a six-year-old may testify using closed-circuit video. Id. Likewise, in Flynn, the United States Supreme Court eventually determined the presence of four uniformed state troopers in the courtroom was not inherently prejudicial based on the “wider range of inferences that a juror might reasonably draw from the officers’ presence.” 475 U.S. at 569 . Thus, an important factor in determining whether a particular practice is inherently prejudicial is whether the practice gives rise mainly to prejudicial inferences or whether the jury could make a wider range of inferences from the use of the procedure. Id. I believe there are many innocuous inferences that arise from the presence of a screen in the courtroom, several of which were identified by the Michigan Court of Appeals in People v. Rose, 808 N.W.2d 301 (Mich. App. 2010). In Rose, the defendant was facing several allegations of sexual abuse. Id. at 306. At trial, the court allowed one of the minor victims to testify from behind a screen that prevented her from seeing the defendant. Id. at 308. Much like Farrell-Quigle, the defendant contended the use of the witness screen was inherently prejudicial. Id. The Michigan Court of Appeals disagreed, holding that a screen is generally not the type of device that brands a defendant with the mark of guilt, such as wearing prison garb or being shackled and gagged. Id. at 316 (citing Coy v. Iowa, 487 U.S. 1012 , 1034–35 (1998) (Blackmun, J., dissenting)). In discussing the wide array of inferences that a screen could give jurors, the Michigan Court of Appeals recognized that although a juror might conclude the witness feared the defendant because the defendant actually harmed the witness, a reasonable juror could also conclude the witness feared to look upon the defendant because the witness was not testifying truthfully. Id. I n addition, a reasonable juror could conclude that the screen was being used to calm the witness’s general 27 anxiety about testifying rather than out of fear of the defendant in particular. Id. The court also acknowledged that anytime a child victim testifies against a defendant who is accused of harming them, the jury is reasonably going to infer that the child has some fear of the defendant. Id. Ultimately, the Michigan Court of Appeals rejected the notion that the use of a screen—no matter what its size or composition and no matter how it was employed at trial—must in every case be presumed to prejudice the defendant. Id. at 317. The court then found there was no evidence in the record to show that the screen caused actual prejudice because there was no evidence about its size, shape, color, or material used. Id. The facts are even more compelling here than in Rose, because of the inconspicuous nature of the screen. The jurors were told that, because of a scheduling conflict, the rest of the trial would be held in a neighboring courtroom. In that new courtroom, a screen, which the district court described as “some courtroom equipment, basically, an aluminum tripod that has a large board that might be used to demonstrate an exhibit in front of the jury,” was placed to the side of the courtroom. The minors testified with no alterations to the new courtroom’s setup, although the screen was turned parallel to the wall after the minors finished testifying. Even though a footnote in Baeza cautioned against rearranging the courtroom or the witness chair so the child would not have to look in the defendant’s direction, that warning likely had in mind the clear prejudice when a screen is positioned in an obvious way in the middle of the courtroom. I understand and agree with the warning in the footnote that advises against such a practice, but I do not read that footnote to be the foundation of a bright-line rule that would invalidate circumstances like those before the Court. The key due process question is whether the use of a screen is an inherently prejudicial practice and whether the screen justified “an essential state interest specific to each trial.” Baeza, 161 Idaho at 41, 383 P.3d at 1211 (citing Flynn, 475 U.S. at 568 –69). Here, it was not immediately apparent that the screen’s placement was intended to block the victims’ view of the defendant. Unlike State v. Parker, where a large, opaque screen, described as the type of panel commonly used as an office partition, was placed against the wall and then deliberately moved several feet into the courtroom for the minor’s testimony, and then moved back against the wall after the minor was done testifying, 757 N.W.2d 7 , 18 (Neb. 2008), opinion modified on denial of reh’g, 767 N.W.2d 68 (2009), the screen that blocked Farrell-Quigle’s view was near the wall and was not overtly moved as part of the minors’ testimony. The screen was also described as courtroom 28 equipment, rather than a well-defined panel that was put in place to block the view between a witness and the defendant. Thus, along with the several inferences that a jury might make as cited in Rose, it would have been reasonable for the jury here to infer that the easel was simply leftover equipment from a previous trial. The majority concedes that the jurors could have made a wide array of inferences about the screen, including that it was a “child friendly prop” meant generally to make testifying more comfortable for the children. According to the United States Supreme Court in Flynn, whether the jury could make a wider range of inferences from the use of the procedure is an important factor in assessing whether a particular practice is inherently prejudicial. 475 U.S. at 569 . Still, the majority claims Baeza expresses a need to be more critical of any circumstances that might single- out a defendant for disparate treatment during a jury trial. Thus, the majority concludes that even if jurors viewed the screen as a comfort measure, it was still an exploit that pointed at the defendant alone as the source of the child’s discomfort and fear. By focusing exclusively on whether the practice singles out a defendant, the majority inexplicitly ignores the importance of the wide array of inferences referenced above. Such a view turns cases like Flynn on their head. See 475 U.S. at 572 . As the Court noted regarding the scope of our review, our task here is not to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom. While, in our supervisory capacity, we might express a preference that officers providing courtroom security in federal courts not be easily identifiable by jurors as guards, we are much more constrained when reviewing a constitutional challenge to a state-court proceeding. All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over. Id. (emphasis added). Indeed, our inquiry should be a similar one – and it should be “over” based upon the district court’s deliberative process in weighing the competing factors and making its conclusion that the screen did not unduly point to Farrell-Quigle’s guilt. I believe the majority errs by myopically focusing its analysis in this way. A trial court must not be limited solely by a bright-line rule that favors the interests of a defendant at all costs; it must also weigh in the balance the essential state interest specific to each trial before reaching such a conclusion. See Baeza, 161 Idaho at 41, 383 P.3d at 1211 (even if a court practice is found to be inherently prejudicial, the court must still 29 consider whether it is “justified by an essential state interest specific to each trial.”). The essential state interest here, protecting the minor victims’ mental health, weighed in the balance and made the use of the “screen” appropriate in this case. This requirement belies the majority’s attempt to establish a “bright-line rule” in these cases. And as explained above, although the screen was strategically placed between the child witnesses and the defendant to prevent them from seeing one another, the screen’s innocuous placement here did not directly point to Farrell-Quigle any more than the fact that he was seated at a table marked “defendant.” Ultimately, I believe the majority’s bright-line rule now requires trial courts to use CCTV or video conferencing even when an alternative safeguard such as a screen may be more appropriate based on the facts of the case. In addition, despite the relative ease with which courts are becoming accustomed to using Zoom or other technological advances in managing the court’s business, some courtrooms in Idaho are not equipped for CCTV or videoconferencing, including the courthouse in this very case. Contrary to the majority’s claims that CCTV or video conferencing is the only appropriate safeguard, a reasonable juror could just as easily infer that the child witness was questioned in a separate room through FaceTime or Zoom because the defendant was a dangerous person warranting his separation from the children. The rationale is the same. I believe the trial court appropriately weighed the risks before concluding that the screen provided a better option so that the children could be physically present in front of the jury. B. The screen used here did not violate the Confrontation Clause. The second argument Farrell-Quigle makes is that the use of the screen violated his right to confront his accusers in this case. Even though the majority doesn’t reach this question it is necessary for me to speak to it, given my position. I would dispense with this argument simply by citing the United States Supreme Court’s holding in Maryland v. Craig, 497 U.S. 836 (1990), where Maryland’s alternative testimony statute, much like Idaho’s, allowed the trial court to make adjustments to protect child victims from the drawbacks in testifying in open court in from of a jury of adults. Since the United States Supreme Court found that the Maryland court’s use of a CCTV process did not violate the Confrontation Clause, I would likewise hold that the screen method used here did not violate Farrell-Quigle’s 6th Amendment right to confront his accusers. “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” 30 Id. at 845. Reliability of testimony is ensured by “personal examination,” along with providing testimony under oath, subject to cross-examination, where the jury can observe the witness’ demeanor. See id. at 845-46. These purposes were well-served here, as recognized by the district court. The steps taken to protect Farrell-Quigle’s child victims provided more direct confrontation than the CCTV process advocated by Farrell-Quigle and adopted by the majority would. Although face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause,” the United States Supreme Court has “nevertheless recognized that it is not the sine qua non of the confrontation right.” Id. at 847 (citation omitted). In sum, the Court’s precedents establish that “the Confrontation Clause reflects a preference for face-to-face confrontation at trial,” which “must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (emphasis in original) (citation omitted). Those public policy considerations and the necessities of this case fortified the trial court’s decision to use the alternate method it employed. The district court found that the alternate method provided a better way to test reliability than would be afforded through a CCTV system. I agree. CONCLUSION While use of a screen as a broad-based approach has potential limitations when used like the Nebraska trial court in State v. Parker, 757 N.W.2d 7 , 18 (Neb. 2008), such screens may also be constitutionally used when special circumstances require the use of an alternate method that both protects alleged victims and the rights of the defendant. The alternate method here did just that. I would thus affirm the district court’s decisions and use of the alternate method in this case. 31

2020-12-03 19:03:12.340609+00

https://isc.idaho.gov/opinions/47635.pdf

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 47635 STATE OF IDAHO, ) ) Filed: December 3, 2020 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) THIS IS AN UNPUBLISHED DONALD LEONARD HARRIS, ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Defendant-Appellant. ) ) Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Scott Wayman, District Judge. Judgment of conviction for three counts of sexual exploitation of a child by possession of sexually exploitative material and one count of injury to child, affirmed. Schwartz Law, P.C.; Christopher D. Schwartz, Coeur d’Alene, for appellant. Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. ________________________________________________ HUSKEY, Chief Judge Donald Leonard Harris appeals from his judgment of conviction for three counts of sexual exploitation of a child by possession of sexually exploitative material (possession of sexually exploitative material) and one count of injury to child. Harris makes two arguments on appeal: first, the State breached its plea agreement at sentencing by implicitly arguing against the agreement after it was executed; and second, the district court abused its discretion by imposing excessive sentences. Harris failed to obtain an adverse ruling from the district court and Harris failed to raise a claim addressing fundamental error analysis in his opening brief on appeal. Consequently, Harris did not preserve his claim related to the alleged breach of the plea agreement for this Court’s review. Even if the issue was preserved, the State did not breach the plea agreement. Further, the district court did not abuse its sentencing discretion. Accordingly, the judgment of conviction and sentences are affirmed. 1  I. FACTUAL AND PROCEDURAL BACKGROUND Two women reported to law enforcement that Harris sexually abused them when they were minors and that Harris may have documented some of the abuse through videos and photographs. As a result, law enforcement officers conducted a search of Harris’s home, which resulted in the discovery of a large quantity of sexually exploitative material. The State charged Harris with two counts of lewd conduct with a minor under sixteen and five counts of possession of sexually exploitative material. Pursuant to a plea agreement, the State amended the charges to one count of injury to child, naming both victims with the same factual bases as the lewd conduct charges, and three charges of possession of sexually exploitative material. Harris waived his rights to appeal the conviction and to withdraw his guilty plea pursuant to Idaho Criminal Rule 33. As part of the plea agreement, both parties stipulated that Harris would receive a prison sentence but the length of the sentence was “open for argument” at the sentencing hearing. Harris entered an Alford1 plea to injury to child and pleaded guilty to three counts of possession of sexually exploitative material. At the sentencing hearing, the State recommended a twenty-five-year sentence, with twelve years determinate, while Harris argued for a determinate sentence of two years, followed by an unspecified indeterminate sentence. After considering the goals of sentencing and other factors, the district court sentenced Harris to a cumulative twenty- year sentence, with eight years determinate: a unified ten-year sentence, with eight years determinate, for the injury to child charge and a ten-year indeterminate sentence for each possession of sexually exploitative material charge, to be served concurrently with each other but consecutively to the injury to child charge. Harris timely appeals. II. STANDARD OF REVIEW It is well settled that in order for an issue to be raised on appeal, the record must reveal an adverse ruling that forms the basis for assignment of error. State v. Huntsman, 146 Idaho 580 , 585, 199 P.3d 155 , 160 (Ct. App. 2008); State v. Amerson, 129 Idaho 395 , 401, 925 P.2d 399 , 405 (Ct. App. 1996). 1 North Carolina v. Alford, 400 U.S. 25 (1970). 2  An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271 , 276, 1 P.3d 299 , 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385 , 393, 825 P.2d 482 , 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89 , 90, 645 P.2d 323 , 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565 , 568, 650 P.2d 707 , 710 (Ct. App. 1982). III. ANALYSIS On appeal, Harris alleges the State breached the terms of the plea agreement at sentencing by implicitly arguing against the agreement after it was executed and the district court abused its discretion by imposing excessive sentences. In response, the State argues Harris waived consideration of the alleged breach of the plea agreement by failing to obtain an adverse ruling from the district court. However, if the claim is preserved for appeal, the State asserts that Harris failed to show the State breached the plea agreement. Finally, the State contends the district court’s sentence was not an abuse of discretion. A. Harris Has Not Preserved a Claim of Error Related to the Alleged Breach of the Plea Agreement as He Did Not Obtain an Adverse Ruling in the District Court Harris argues the prosecutor breached the terms of the plea agreement by arguing for a sentence based on the original charges for lewd conduct, instead of the reduced charge of injury to child. Harris alleges a breach occurred because the prosecutor initially told the district court that it was sentencing Harris for lewd conduct, repeatedly referenced that Harris had sex with and sexually abused the named victims, and based the State’s recommended sentence “almost entirely” on the conduct supporting Harris’s injury to child plea. Because of these comments, Harris argues the State essentially argued for a sentence based on the lewd conduct charge, not the injury to child charge, and therefore this Court should vacate his sentence.2 In response, the State asserts there is 2 In the plea agreement, Harris agreed to “[w]aive appeal as of right as to conviction and ability to request a withdrawal of guilty plea under [Idaho Criminal Rule] 33.” However, as the 3 no adverse ruling from which Harris can appeal, as Harris did not ask the district court to rule on the alleged breach of the plea agreement; consequently, any claim of error is unpreserved. It is the appellant’s burden to obtain an adverse ruling at the trial court, Huntsman, 146 Idaho at 586 , 199 P.3d at 161, and it is well settled that this Court will not review an appellant’s assignment of error unless the record discloses such an adverse ruling which forms the basis for the claim. State v. Dougherty, 142 Idaho 1 , 6, 121 P.3d 416 , 421 (Ct. App. 2005). This remains true even when the trial court had actual knowledge of the issue and implicitly did not grant the party the desired relief. Huntsman, 146 Idaho at 586 , 199 P.3d at 161. Here, there is no ruling which was unfavorable to Harris for this Court to review. In response to the prosecutor’s sentencing recommendation, Harris’s counsel expressed concern that the recommendation breached the terms of the plea agreement, but stated that he would raise this issue on appeal: Well, to begin with, Judge, I think it’s important to note that Mr. Harris is here in front of you not on an L and L charge but an injury to child charge. So pursuant to State v[.] Wells,3 I believe the State has breached the Plea Agreement by arguing that he committed an L and L while reducing the charge to injury to child, so we’ll take that up on appeal and proceed forward as State v[.] Wells allows us, but I wanted to make a record of that. Thus, Harris did not ask for or obtain a ruling from the district court as to whether the State breached the plea agreement, and the holding in Huntsman forecloses an argument the district court knew about the issue and implicitly denied it. Without an adverse ruling, Harris cannot raise his claim for the first time on appeal. In his reply brief, Harris raises two arguments to support appellate review of his claim. Harris asserts that his counsel’s statements constituted a valid objection and the district court implicitly denied the motion, thereby obtaining an adverse ruling and preserving the claim for appellate review. Alternatively, Harris argues that even if his counsel’s statements did not constitute an objection, the error is preserved as a claim of fundamental error. The arguments fail to persuade this Court. State does not raise this waiver as an affirmative defense, this Court will not consider the issue on appeal. 3 Defense counsel was referring to State v. Wills, 140 Idaho 773 , 102 P.3d 380 (Ct. App. 2004). 4  First, Harris’s argument that his counsel’s statement to the district court was a legitimate, contemporaneous objection is raised for the first time in his reply brief. This Court will not consider arguments raised for the first time in an appellant’s reply brief. Suitts v. Nix, 141 Idaho 706 , 708, 117 P.3d 120 , 122 (2005) (“reviewing court looks only to the initial brief on appeal for the issues presented because those are the arguments and authority to which the respondent has an opportunity to respond in the respondent’s brief”). Second, in his initial brief, Harris fails to argue whether the alleged breach of the plea agreement constituted fundamental error. Harris cites two legal standards in his initial brief: first, a breach of a plea agreement constitutes fundamental error but “fundamental error can still be harmless error”; and second, the harmless error test set forth in Chapman v. California, 386 U.S. 18 , 23 (1967). Despite listing these conflicting legal standards, Harris neither articulates under which analytical rubric his claim falls nor provides argument relative to that analysis. This is fatal to his claim, as a party waives an issue on appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259 , 263, 923 P.2d 966 , 970 (1996). Consequently, Harris failed to preserve the claim of whether the State breached the plea agreement for appellate review. If Harris’s statement about the alleged breach constitutes a valid, contemporaneous objection, Harris failed to obtain an adverse ruling for this Court to review. If Harris’s statement is not a valid objection, Harris failed to address whether the alleged breach constituted fundamental error in his initial brief. Because Harris failed to do either, we decline to address his claim that the State breached the plea agreement. B. The State Did Not Breach the Plea Agreement Even if there had been an adverse ruling pertaining to the alleged prosecutorial misconduct, the prosecutor did not breach the terms of the plea agreement during sentencing. It is well established that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257 , 262 (1971). Like a contract, a valid plea agreement binds the State to perform the promised obligations. Puckett v. United States, 556 U.S. 129 , 137 (2009). The State’s failure to comply with its obligations constitutes a breach of the agreement and entitles the defendant to appropriate relief. Id. As a remedy, the court may order specific performance of the agreement or may permit the defendant to withdraw the guilty plea. Santobello, 404 U.S. at 263 ; State v. Jones, 139 Idaho 299 , 302, 77 P.3d 988 , 991 (Ct. App. 2003). 5  The prosecution’s obligation to recommend a sentence promised in a plea agreement does not carry with it the obligation to make the recommendation enthusiastically. United States v. Benchimol, 471 U.S. 453 , 455 (1985); Jones, 139 Idaho at 302 , 77 P.3d at 991. A prosecutor may not circumvent a plea agreement, however, through words or actions that convey a reservation about a promised recommendation, nor may a prosecutor impliedly disavow the recommendation as something that the prosecutor no longer supports. Jones, 139 Idaho at 302 , 77 P.3d at 991. Although prosecutors need not use any particular form of expression in recommending an agreed upon sentence, their overall conduct must be reasonably consistent with making such a recommendation, rather than the reverse. Id. The terms of the plea agreement required the State to reduce the charges against Harris to three counts of possession of sexually exploitative material and one count of injury to child, naming both victims in the injury to child charge. The plea agreement included the statutory maximum penalty for each charge as ten years as designated in I.C. §§ 18-1507(3) and 18-1501, respectively, for a total maximum possible sentence of forty years. The plea agreement included no restrictions on the length of the prison sentence recommendation, specifically stating that the “[p]arties stipulate to a prison sentence, but length is open for argument.” Thus, the State fulfilled the terms of the plea agreement when it filed the second, superseding indictment reducing the charges against Harris and could not breach the terms of the plea agreement by recommending the district court impose a cumulative twenty-five-year sentence for the four charges. Although Harris argues the prosecutor breached the terms of the plea agreement by proceeding as if the district court was sentencing Harris on the original charges of lewd conduct, this argument is without merit. The record reflects that the prosecutor argued for a sentence based on the reduced charge of injury to child. When beginning his argument for the State’s sentencing recommendation, the prosecutor stated: As the Court knows from the Pretrial Settlement Offer, this is a stipulated prison recommendation. And so when the Court’s deciding how long to send him to prison, the way I see it there are 40 years here to work with: The three counts of child pornography and the one count of lewd--excuse me, of injury to child. In deciding upon a number, my thought was this, Judge: I think if you’re going to start having sex with a 12-year-old girl, 12 years is a good place to start in terms of the fixed sentence. There is no evidence that the prosecutor’s singular reference to the word “lewd” was anything more than an accidental misstatement which he immediately corrected. Therefore, 6 despite Harris’s assertions, the prosecutor did not argue that the district court was sentencing Harris for lewd conduct simply by saying the word “lewd” during the State’s sentencing recommendation. Second, Harris asserts the prosecutor breached the plea agreement by repeatedly referencing that Harris had sex with and sexually abused the victims. Harris implicitly argues that this conduct supports lewd conduct charges, but does not support the reduced injury to child charge. This Court disagrees. In the original indictment, the State charged Harris with two counts of lewd conduct “by having genital-genital, oral-genital, and/or manual-genital contact” with the victims “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the defendant.” In the second, superseding indictment, to which Harris entered an Alford plea, the State charged Harris with one count of injury to child by, under circumstances likely to produce great bodily harm, “having genital-genital, oral-genital, and/or manual-genital contact” with the victims “who were under the age of 16 at the time of the defendant’s conduct.” Thus, the description of the physical contact that gave rise to both the original and the amended charges remained the same, regardless of the charge. Further, characterizing that physical contact as “sex” is how one victim described Harris’s conduct during her grand jury testimony, which Harris relied on as the facts to establish his Alford plea and how an officer characterized the conduct in his police report. Similarly, the prosecutor’s limited reference to “sexual abuse,” which the prosecutor only used once to acknowledge that Harris’s conduct with one of the named victims “didn’t evolve into the full-blown type of sexual abuse that it did with” the other victim reflected how the victim described Harris’s conduct in her victim impact statement and how an officer described the conduct in his police report. These characterizations were reflected in various reports, and were in part, relied upon by Harris; therefore, these were facts that the district court could properly consider. See State v. Helms, 130 Idaho 32 , 35, 936 P.2d 230 , 233 (Ct. App. 1997) (sentencing court may consider facts underlying criminal charges); see also State v. Flowers, 150 Idaho 568 , 574, 249 P.3d 367 , 373 (2011) (“Absent a provision in the plea agreement expressly limiting the information that the State can present, it can present any relevant information that could assist the court.”). Thus, the prosecutor’s description of the physical contact giving rise to the injury to child charge did not breach the plea agreement. Finally, Harris alleges the State breached the plea agreement because the prosecutor based the State’s recommended sentence “almost entirely” on the factual description of the physical 7 contact described in Harris’s injury to child charge. Because the injury to child charge carried a maximum sentence of ten years, Harris argues the State’s recommended sentence of twenty-five years, with twelve years determinate, constituted an implicit breach. However, this allegation is not supported by the record. During the sentencing hearing, the prosecutor noted that based on the four charges to which Harris was being sentenced, the district court could impose a statutory maximum period of incarceration of forty years. Then, the prosecutor argued for a twelve-year determinate sentence, stating “[i]n deciding upon a number, my thought was this, Judge: I think if you’re going to start having sex with a 12-year-old girl, 12 years is a good place to start in terms of the fixed sentence.” The prosecutor reasoned that the facts of all four charges support the State’s recommended sentence: Harris “did this to these two little girls and he amassed quite the treasure trove of child pornography. The Court is aware from the [presentence investigation report] that he had thousands of images of little boys and little girls engaged in unspeakable acts.” When reviewed in whole, the record indicates that the prosecutor described what sentence the State believed was appropriate given all four charges. Therefore, the recommended sentence did not breach the plea agreement. The plea agreement did not limit what sentencing recommendations each party could make, the district court could consider the physical conduct underlying the injury to child charge, and the prosecutor based the State’s sentencing recommendation on the four charges to which Harris was being sentenced. Accordingly, the State did not breach the terms of the plea agreement during the sentencing hearing. C. The District Court’s Sentence Did Not Constitute an Abuse of Discretion Harris argues the district court abused its discretion by imposing excessive sentences. Specifically, Harris argues the district court sentenced him as if he pled guilty to the original lewd conduct charges and did not properly consider mitigating factors like his lack of criminal history, numerous letters of support, low risk of recidivism, and acceptance of accountability for possession of sexually exploitative material. Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771 , 772, 653 P.2d 1183 , 1184 (Ct. App. 1982). When reviewing the length of a 8 sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722 , 726, 170 P.3d 387 , 391 (2007). First, there is no evidence in the record to support Harris’s allegation that the district court sentenced him as if he pled guilty to the original lewd conduct charge. The district court never mentioned the lewd conduct charge; instead the court acknowledged that the injury to child charge was serious in light of the conduct alleged, accurately stated the maximum penalty for the felony injury to child charge, and imposed a sentence within the statutory guidelines for the injury to child charge. Although the district court recognized that the conduct underlying both the lewd conduct charge and the injury to child charge was the same, this does not indicate that the court was sentencing Harris for lewd conduct. Instead, it was an acknowledgement of what we have previously recognized; Harris entered an Alford plea to the crime of felony injury to child “by having genital-genital, oral-genital, and/or manual-genital contact” with the victims and the district court could properly consider that conduct when imposing the sentence. Second, the record shows the district court considered relevant mitigating factors in its sentencing decision. The district court stated that it considers both the circumstances of the individual offense and the character of the individual defendant when making a sentencing determination. The district court recognized the conduct that gave rise to the injury to child charge occurred many years ago and Harris has positive character traits, evidenced by his lack of a significant criminal record and the number of people in his life who support him, vouch for his character, and testify to his good nature. But, the district court also recognized the severity of the charges, the lifelong impact Harris’s actions would have upon the victims, and the impact of possession of sexually exploitative material which supports “a whole industry that abuses the children” shown in the photographs. Third, Harris argues that when imposing sentence the district court did not consider his low risk of recidivism referenced in his presentence investigation report (PSI), average risk of recidivism and recommendation to participate in sex-offender treatment referenced in his psychosexual evaluation (PSE), and acceptance of accountability for possession of sexually exploitative material. When these factors, along with Harris’s lack of criminal record, steady employment history, and community support are properly considered, Harris argues the district court’s twenty-year cumulative sentence, with eight years determinate, is excessive. 9  The district court was sentencing Harris for charges that involved sexual conduct with two minor victims and possession of sexually exploitative material of other children. The testimony of the victims from the grand jury proceedings and the statement read by a victim advocate at the sentencing hearing detail the years of Harris’s sexual conduct towards the victims, beginning when the victims were eleven and twelve years old. When law enforcement searched Harris’s home, they found more than 2,900 images4 of sexually exploitative material and internet searches involving teens and pornography. The PSE found that Harris acknowledged viewing the “barely legal” genre and described being sexually attracted to females that are between the ages of sixteen and fifty. Ultimately, the PSE found that for nearly twenty years, Harris has shown a pattern of strong sexual interests towards adolescent females. Although the PSI placed Harris at a low risk to reoffend because of protective factors like his employment history, financial stability, support systems, accommodations, and sobriety, it also stated that Harris’s PSE was not made available prior to the submission of the PSI and therefore the investigator declined to make a sentencing recommendation. The PSE gave specific and additional context to Harris’s sexual proclivities and his likelihood of sexual recidivism, which included insight about Harris’s lack of candor and accountability during the evaluation. The PSE noted that Harris continued to deny some behaviors that had contradictory evidence in the record, like allowing the victims to drink alcohol in his home and seeking out sexually exploitative material. Both the PSI and the PSE had specific examples of Harris’s lack of accountability, including his perception that the charges were “unfair” and that he did not understand why the victims accused him of the underlying conduct. Further, Harris denied that he ever sought out sexually exploitative material, despite the police report indicating that Harris possessed over 2,900 such images. The PSE found possession of such a large amount of sexually exploitative material was “far from unintentional.” Ultimately, the PSE placed Harris in the moderate category of concern and categorized him as an average risk for sexual recidivism. The PSE found Harris had a “sexual preoccupation” and his pornography habits suggest “he still has a strong sexual interest in adolescent females,” raising concern about Harris seeking out sexually exploitative material or 4 Harris argued at sentencing that “only 300 of the images were actually flagged as child pornography. The remaining were flagged as possible child pornography.” This distinction is irrelevant to the opinion. 10 opportunistic situations with pubescent and prepubescent females in the future. Further, because of Harris’s lack of candor and lack of accountability, the PSE had concern about his amenability to sexual-offender treatment, although it noted that generally any individual may improve his amenability over time. Although Harris argues on appeal that he took accountability for possession of sexually exploitative material, the PSE found that “[t]hroughout the interview, it appeared Mr. Harris would have some type of excuse to explain away his behaviors” and “minimized his involvement with the index offenses.” The evaluator also strongly suspected “there is a lot more to [Harris’s] sexual arousal than he is willing to disclose.” Harris further demonstrated a lack of accountability at the sentencing hearing by implying the pornographic images just appeared on his screen, stating: “I admit that I have--had a porn addiction at one time. I have seen images of that nature. They come up when you’re surfing the web.” Therefore, the record undermines Harris’s claim on appeal that he accepted accountability for the charged offenses. A complete review of the record provides ample support for the sentences imposed by the district court, and we cannot say that the cumulative sentence of twenty years, with eight years determinate, is an abuse of discretion. IV. CONCLUSION Harris failed to obtain an adverse ruling from the district court and failed to raise a claim of fundamental error in his opening brief, thereby failing to preserve his claim on appeal that the State breached the plea agreement through the prosecutor’s sentencing recommendation. Even if the claim was preserved, the State did not breach the terms of the plea agreement through the prosecutor’s sentencing recommendation to the district court. Further, the district court’s sentences do not constitute an abuse of discretion. Accordingly, the judgment of conviction and sentences are affirmed. Judge GRATTON and Judge LORELLO CONCUR. 11

2020-12-03 19:03:12.689666+00

https://isc.idaho.gov/opinions/47638.pdf

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 47638 JACOB STEPHEN DAVIS, ) ) Filed: November 30, 2020 Petitioner-Appellant, ) ) Melanie Gagnepain, Clerk v. ) ) THIS IS AN UNPUBLISHED STATE OF IDAHO, ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Respondent. ) ) Appeal from the District Court of the Third Judicial District, State of Idaho, Payette County. Hon. Susan E. Wiebe, District Judge. Judgment of the district court summarily dismissing petition for post-conviction relief, affirmed. Ferguson Durham, PLCC; Craig H. Durham, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________ GRATTON, Judge Jacob Stephen Davis appeals from the district court’s judgment dismissing his petition for post-conviction relief. Davis argues that the district court erred by summarily dismissing his post-conviction claims. For the reasons set forth below, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 2014, the State charged Davis with various crimes in two separate cases. In the first case, Davis was convicted for failing to provide notice of his change of address for the sex offender registry, Idaho Code §§ 18-8304(1); 18-8309(1), (2), and (3); 18-8311(1); and being a persistent violator, I.C. § 19-2514. In the second case, Davis was convicted of two counts of lewd conduct with a minor child under sixteen, I.C. § 18-1508; two counts of sexual battery of a minor child sixteen or seventeen years of age, I.C. § 18-1508A; possession of sexually exploitive material for 1 other than a commercial purpose, I.C. §§ 18-1507, 18-1507A; and an enhancement for being a repeat sex offender, I.C. § 19-2520G. The district court held a combined sentencing hearing for both cases. In the first case, the court imposed a unified sentence of forty-five years with twenty years determinate. In the second case, the court imposed consecutive unified sentences of thirty-five years, with fifteen years determinate for each of the lewd conduct and sexual battery convictions and a determinate sentence of fifteen years for possession of sexually exploitive material. The court ordered the sentences in each case to be served concurrently with one another. Davis filed a direct appeal and this Court affirmed Davis’s judgments of conviction in State v. Davis, Docket No. 43818, (Ct. App. Apr. 27, 2017) (unpublished). Subsequently, Davis filed motions for new trials in both cases which the district court denied and the Idaho Supreme Court affirmed in State v. Davis, 165 Idaho 709 , 451 P.3d 422 (2019). In 2018, Davis filed a pro se petition for post-conviction relief. In support of his petition, Davis filed an affidavit with numerous attached exhibits. Thereafter, Davis was appointed counsel and, through appointed counsel, Davis filed an amended petition for post-conviction relief. In the amended petition, Davis alleged that the State failed to disclose exculpatory evidence and he received ineffective assistance of counsel. In support of the amended petition, Davis filed an affidavit titled “Declaration in Support of Amended Petition of Post-Conviction Relief” to which Davis attached an exhibit titled “Exhibit 100.” Exhibit 100 consisted of a previous affidavit that Davis filed in support of his motions for new trials in the underlying criminal proceedings and the exhibits to the previous affidavit. The State filed a motion seeking to summarily dismiss Davis’s petition. After a hearing on the State’s motion, the district court summarily dismissed Davis’s petition. Davis timely appeals. II. STANDARD OF REVIEW A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907; Rhoades v. State, 148 Idaho 247 , 249, 220 P.3d 1066 , 1068 (2009); State v. Bearshield, 104 Idaho 676 , 678, 662 P.2d 548 , 550 (1983); Murray v. State, 121 Idaho 918 , 921, 828 P.2d 1323 , 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269 , 271, 61 P.3d 626 , 628 (Ct. App. 2002). A petition for 2 post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50 , 56, 106 P.3d 376 , 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64 , 67, 266 P.3d 1169 , 1172 (Ct. App. 2011). Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but the court is not required to accept either the petitioner’s mere conclusory allegations, unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125 Idaho 644 , 647, 873 P.2d 898 , 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156 , 159, 715 P.2d 369 , 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353 , 355, 195 P.3d 712 , 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id. Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner’s allegations do not justify relief as a matter of law. Kelly v. State, 149 Idaho 517 , 521, 236 P.3d 1277 , 1281 (2010); DeRushé v. State, 146 Idaho 599 , 603, 200 P.3d 1148 , 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when 3 the state does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647 , 873 P.2d at 901. Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789 , 792, 102 P.3d 1108 , 1111 (2004); Sheahan v. State, 146 Idaho 101 , 104, 190 P.3d 920 , 923 (Ct. App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272 , 61 P.3d at 629. On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671 , 675, 227 P.3d 925 , 929 (2010); Sheahan, 146 Idaho at 104 , 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades, 148 Idaho at 250 , 220 P.3d at 1069; Downing v. State, 136 Idaho 367 , 370, 33 P.3d 841 , 844 (Ct. App. 2001). III. ANALYSIS Davis argues that the district court erred by summarily dismissing his petition for post-conviction relief. Specifically, Davis claims that the district court erred in its scope of review because it strictly construed Davis’s claims and supporting documentation. In addition, Davis argues that the district court erred substantively by failing to analyze Davis’s claim of newly discovered evidence as a due process violation under Brady1 and, instead, by dismissing the newly discovered evidence claim under Strickland.2 Before addressing Davis’s substantive arguments, we must first address Davis’s arguments regarding the scope of the district court’s review. A. Scope of Review Davis argues that the district court’s scope of review was too limited. Specifically, Davis argues that the district court erred by: (1) failing to consider his original petition and affidavit which he contends that he incorporated by reference into his amended petition; (2) limiting its consideration of Exhibit 100; and (3) failing to take judicial notice of the underlying criminal records. Davis argues that the district court’s scope of review constituted error because the 1 Brady v. Maryland, 373 U.S. 83 (1963). 2 Strickland v. Washington, 466 U.S. 668 (1984). 4 Uniform Post-Conviction Procedures Act requires courts to focus on “the substance of the petition regardless of defects in form.” 1. Incorporation by reference Davis argues that the district court incorrectly failed to consider the contents of his original petition or the affidavit that he attached to his original petition, which Davis claims he incorporated by reference into his amended petition. In the State’s motion for summary dismissal, before addressing Davis’s claims, the State argued that the original petition and affidavit should not be considered because they were replaced and superseded by the amended petition and amended affidavit. In addition, the State argued: Indeed, Respondent objects to consideration in this matter of any arguments or allegations made in the original Petition, Exhibit 100, or the unreferenced exhibits attached to the original affidavit that are not explicitly repeated or referenced in the amended Petition or additional Declaration. Those arguments and the corresponding citations and references associated with them, however sparse and inaccurate they may have been, have been entirely abandoned and replaced, and Respondent has proceeded in this matter understanding that those items would not be considered. However, should Petitioner argue or the Court decide otherwise, Respondent reserves the right to supplement this brief and address those arguments, either before or after the summary dismissal hearing, because even when considered, they fail to establish a genuine issue of material fact sufficient to survive summary dismissal. In response, Davis argued: Respondent’s objection for the inclusion of Exhibit 100 is misplaced since the arguments found therein are impliedly incorporated in paragraphs V through IX of the amended petition. Also, in paragraph 5(e) of Petitioner’s supporting Declaration explicitly states the incorporation of Exhibit 100. Petitioner has proceeded with this matter understanding that those items would be considered. Ultimately, the district court concluded it would not consider the contents of the original petition and affidavit because Davis failed to adequately incorporate them by reference. On appeal, Davis “doesn’t dispute that an amended petition generally takes the place of an original petition, but he does dispute that he failed to incorporate at least the prior affidavit into his amended petition.” Davis relies on the following language, which is located within his ineffective assistance of counsel claim in his amended petition, and argues that the language incorporated “at least” his original affidavit and likely his original petition into his amended petition: “a motion to suppress would have been granted as evidenced by the sample motion and legal arguments set forth in the Affidavit of Jacob Davis in Support of Petition for Post-Conviction Relief filed herein.” 5 In response, the State contends that Davis’s argument is not preserved for appeal and even if it is, he failed to appropriately incorporate his prior petition or affidavit by reference in his amended petition. We agree with the State. First, we conclude that Davis’s argument is not preserved for appeal. As set forth above, Davis argued below that he impliedly incorporated Exhibit 100 into his amended petition and expressly incorporated Exhibit 100 into the amended affidavit. On appeal, Davis changes course, relies on specific language from his amended petition, and argues that he explicitly incorporated items from his original affidavit by references made in his amended petition. In other words, Davis argued below he implicitly incorporated Exhibit 100 into the amended petition and expressly incorporated Exhibit 100 into the amended affidavit, but now, on appeal, he argues he explicitly incorporated his original affidavit. Davis did not provide argument below to the district court, in neither the briefing nor the summary dismissal hearing, that the original petition or original affidavit were incorporated by reference. Davis does not present the same argument upon which he relied below and has failed to preserve his new argument for appeal. See State v. Garcia-Rodriguez, 162 Idaho 271 , 275, 396 P.3d 700 , 704 (2017) (“Issues not raised below will not be considered by this court on appeal, and the parties will be held to the theory upon which the case was presented to the lower court.”). Second, regardless if Davis preserved his argument for appeal, we conclude that the district court did not err by refusing to consider Davis’s original petition and affidavit because Davis did not incorporate either document into his amended petition by reference. As Davis concedes, the original petition and affidavit were replaced by the amended petition and affidavit. See W.L. Scott, Inc. v. Madras Aerotech, Inc., 103 Idaho 736 , 739, 653 P.2d 791 , 794 (1982) (“The amendment of the complaint supersedes the original complaint and all subsequent proceedings are based upon the amended complaint.”). The language that Davis claims incorporated the previous affidavit and petition by reference is not sufficient to put the State on notice of Davis’s alleged intent to incorporate those documents into his amended petition. See Youngblood v. Higbee, 145 Idaho 665 , 668, 182 P.3d 1199 , 1202 (2008) (a proper complaint puts “the adverse party on notice of the claims brought against it”). The language does not mention, much less incorporate the prior petition. The language does mention a “sample motion and legal arguments” set forth in the original affidavit. However, Davis’s mere mention of a document within his ineffective assistance of counsel claim in the amended petition does not incorporate that entire document and all of its 6 legal arguments into the amended petition as if fully set forth therein. See, e.g., Sanders Orchard v. Gem Cty. ex rel. Bd. of Cty. Comm’rs, 137 Idaho 695 , 699, 52 P.3d 840 , 844 (2002) (concluding that requirement that the board “consider” comprehensive plan did not incorporate that plan or any of its provisions by reference). Accordingly, Davis has failed to show that the district court erred by refusing to consider the original petition and affidavit. 2. Exhibit 100 Davis argues that the district court erred by strictly construing Exhibit 100. As discussed above, Exhibit 100 consisted of a previous affidavit that Davis filed in support of his motions for new trials in the underlying criminal proceedings and the exhibits to the previous affidavit. The district court concluded that Davis had incorporated Exhibit 100 by reference into his amended affidavit and, after applying I.R.C.P. 56(c)(4), concluded that it would only consider the content contained in Exhibit 100 that appeared to be within Davis’s personal knowledge. On appeal, Davis argues that the district court erred by applying I.R.C.P 56(c)(4) and I.C. § 19-4903 and failing to consider the substance of Exhibit 100 over the form. Davis contends that “In providing the district court with Exhibit 100, Davis was attempting to comply with the particularity requirement by proffering what he believed the new and missing evidence was and why it was important to the defense.” The State argues that the district court properly applied I.R.C.P. 56(c)(4) and properly disregarded the inadmissible portions of Exhibit 100. We conclude that the district court did not err by applying I.R.C.P. 56(c)(4) to Exhibit 100. Davis does not argue that the district court erred by concluding that Exhibit 100 was incorporated by reference into his amended affidavit. However, Davis takes issue with the district court applying the Idaho Rules of Civil Procedure to Exhibit 100 and treating its content like all other content in the affidavit. Idaho Rule of Civil Procedure 56(c)(4) requires that “An affidavit used to support or oppose a motion” be “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Although Davis argues that he was “attempting” to comply with certain requirements, Davis did not comply with I.R.C.P. 56(c)(4). The district court properly applied I.R.C.P. 56(c)(4) and limited its consideration of Exhibit 100 to what appeared to be within Davis’s personal knowledge. Accordingly, Davis has not shown that the district court erred in its consideration of Exhibit 100. 7  3. Judicial notice Davis claims that the district court erred by failing to take judicial notice of the underlying criminal records. Below, Davis filed his initial petition for post-conviction relief and included a motion requesting the district court take judicial notice of the entirety of five criminal case files. Davis did not file a brief in support of that motion or notice the motion for hearing. Thereafter, Davis filed his amended petition. In its order granting the State’s motion for summary dismissal, the district court articulated various items for which it took judicial notice. On appeal, Davis argues that the court erred by failing to take judicial notice of the entire underlying criminal records as requested in his motion. In making this argument, Davis concedes that he did not supply the court with the underlying records when he filed his motion but argues that he was acting pro se at the time. In addition, Davis faults the district court for not requiring the State to provide the records because the State “bears an equal responsibility under the UPCPA to provide the court with those records.” In response, the State argues the district court did not err by failing to consider or take judicial notice of the underlying criminal records to which Davis failed to cite. The State contends that, contrary to Davis’s assertion, it was Davis’s duty and not the State or the district court’s duty to search the underlying criminal records to find evidence to support Davis’s claims. We conclude that the district court did not err by failing to rule on Davis’s motion or take judicial notice of the entirety of the files in the underlying criminal cases. Idaho Rule of Evidence 201(c) states that “the court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information.” First, Davis concedes he did not supply the court with the records that he was requesting to be noticed when he filed the motion accompanying his initial petition. Davis was required to do so under I.R.E. 201(c). Moreover, Davis was required to point to specific portions of the records, and not the underlying records generally, so that the district court was aware of the relevant portions. See I.R.E. 201(c) (“When a party requests judicial notice of records, exhibits, or transcripts from the court file in the same or a separate case, the party must identify the specific items for which judicial notice is requested or offer to the court and serve on all parties copies of those items.”). The district court is not required to comb through all of the underlying records and take judicial notice of items that support Davis’s claims. 8  Second, Davis did not appropriately notice the motion for a hearing. Third, and as discussed above, the amended petition superseded the original petition. See Scott v. Madras, 103 Idaho at 739 , 653 P.2d at 794. Davis did not request that the court take judicial notice of any documentation in relation to his amended petition and the court was not required to examine attachments to a petition that was superseded. Finally, although Davis faults the State and the district court for their failure to take notice or attach the entire underlying criminal records, Davis also had a duty to attach the portions that were relevant to his own claim. Davis failed to do so and the district court appropriately took judicial notice of certain items within the underlying criminal records sua sponte. Accordingly, Davis has failed to show that the district court erred by taking judicial notice of specific documents in the underlying records. B. Newly Discovered Evidence Notwithstanding his claims of procedural error, Davis argues that the district court erred by summarily dismissing his post-conviction claims. First, Davis argues that the district court erred by failing to analyze his claim that the prosecutor failed to turn over certain evidence as a due process or Brady v. Maryland, 373 U.S. 83 (1963) violation. Second, Davis makes the related argument that, if the prosecutor did turn the evidence over, his trial counsel was ineffective for failing to use the evidence. Below, Davis contended that he discovered evidence that would have assisted his cross-examination of witnesses at trial. Under the “material fact” section of his amended petition, Davis mentioned that the State had an obligation to disclose various evidence under Idaho Criminal Rule 16 and under Brady. The State filed a motion for summary dismissal. In relation to Davis’s newly discovered evidence claim, the State argued that Davis failed to set forth a viable claim of newly discovered evidence under State v. Drapeau, 97 Idaho 685 , 551 P.2d 972 (1976) or a viable due process claim under Brady. Davis responded to the State’s motion for summary dismissal and argued that he set forth a viable claim of newly discovered evidence under Drapeau. The district court dismissed Davis’s Drapeau claim concluding that he could have raised the issue on direct appeal and the claim failed on the merits. Specifically, the district court concluded that Davis failed to present a prima facie case under Drapeau because, in pertinent part, Davis “failed to show that this evidence was never disclosed to his trial counsel or that it does in fact exist.” Among other things, the district court determined Davis did not present prima facie evidence of ineffective assistance of counsel for failing to acquire the newly discovered evidence. In particular, the court 9 explained that Davis did not present evidence that his trial counsel’s performance was deficient because Davis did not show what was and was not disclosed to his trial counsel “so the Court ha[d] no way of knowing if his trial counsel did, in fact, actually fail to obtain [the evidence].” On appeal, Davis does not challenge the district court’s decision regarding the Drapeau test. Rather, Davis contends that the district court erred by failing to apply a due process analysis under Brady. Specifically, Davis argues: The amended petition was a bit of a rush-job by Davis’s second appointed attorney. But a reasonable and fair construction of the substance of the claims is that Davis was alleging two sides of the same coin. That is, he was alleging that if the State withheld material evidence from the defense, then it was a violation of Brady or Drapeau and supported a new trial. But if the State had turned it over to Davis’s trial counsel in discovery, then Davis was deprived of his right to the effective assistance of counsel under Strickland because his counsel did not use that evidence and it prejudiced him. One way or the other, Davis asserted, one of his constitutional rights was violated. The district court erred in failing to consider these factual allegations to resolve whether they set forth a prima facie case on Brady or Strickland. In response, the State contends that Davis’s Brady argument is not preserved for appeal because Davis did not ask that the district court apply Brady to his newly discovered evidence argument in response to the State’s motion for summary dismissal. Even so, the State contends that Davis’s Brady claim fails for the same reason that his Drapeau and ineffective assistance of counsel claims fail. That is, Davis did not show whether the evidence was or was not suppressed by the State. We conclude that Davis did not preserve his Brady claim for appeal. Davis did not present a Brady argument anywhere in his briefing below. In the factual allegations set forth in his amended petition, Davis mentioned Brady but did not present a Brady claim as an opposition to the State’s motion for summary dismissal. Not surprisingly, the district court did not directly address Brady when it made its ruling regarding Davis’s claim of newly discovered evidence. Because Davis did not make a Brady claim below, he has not preserved his argument for appeal. State v. Fodge, 121 Idaho 192 , 195, 824 P.2d 123 , 126 (1992) (concluding that generally, issues not raised below may not be considered for the first time on appeal). In addition, we conclude that, even if Davis did preserve a Brady claim, his claim, like his ineffective assistance of counsel and Drapeau claims, fails on the merits. “Proving a Brady violation requires a three-part showing: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been 10 suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” Thumm v. State, 165 Idaho 405 , 422, 447 P.3d 853 , 870 (2019). In dismissing Davis’s Drapeau claim and as set forth above, the district court concluded that Davis failed to show that the challenged evidence was not produced by the State. Davis does not challenge this finding and, because Davis is required to make a showing that the evidence was suppressed by the State to be entitled to an evidentiary hearing under Brady, the finding precludes Davis’s success under Brady. Moreover, as illustrated above, Davis concedes that he is not aware (1) if the evidence was not produced, or (2) if the evidence was produced and not used by trial counsel. However, Davis is required to present prima facie evidence of each element of a claim in order to overcome summary dismissal of his post-conviction petition. Kelly, 149 Idaho at 521 , 236 P.3d at 1281. In light of Davis’s concession, Davis cannot present prima facie evidence of a Brady claim because he cannot show that the State failed to produce the evidence. See Thumm, 165 Idaho at 422 , 447 P.3d at 870. Additionally, and for the same reason, Davis cannot present prima facie evidence of an ineffective assistance of counsel claim because he cannot show that his trial counsel’s performance was deficient for receiving but failing to use the evidence.3 Accordingly, we conclude that the district court did not err by summarily dismissing Davis’s claims. IV. CONCLUSION The district court did not err by granting the State’s motion for summary dismissal. Therefore, the judgment of the district court summarily dismissing Davis’s post-conviction petition is affirmed. Chief Judge HUSKEY and Judge BRAILSFORD CONCUR. 3 Davis concludes his brief by stating that “he is serving 75 years in prison until he is even eligible for parole and is entitled to a thorough and careful look” at his claims. As discussed above, the district court reviewed Davis’s petition and Davis failed to meet the standard required to obtain an evidentiary hearing. 11

2021-01-27 07:14:57.204151+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=17977&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

Affirm and Opinion Filed January 21, 2021 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00621-CR CHASE RUNNELS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1239674-Q MEMORANDUM OPINION Before Justices Myers, Pedersen, III, and Garcia1 Opinion by Justice Pedersen, III Appellant Chase Runnels challenges the trial court’s April 12, 2019 judgment adjudicating his guilt for aggravated robbery with a deadly weapon. In a single issue, appellant contends that his initial guilty plea was invalid, rendering the current judgment void. We affirm the trial court’s judgment. 1 The Honorable Justice Dennise Garcia succeeded the Honorable Justice Bill Whitehill, a member of the original panel. Justice Garcia has reviewed the briefs and the record before the Court.  Background In October 2012, appellant was indicted for his part in the aggravated robbery of Wynton Dunn. The indictment charged that during a theft of property, appellant intentionally and knowingly placed Dunn in fear of imminent bodily injury and death by using a firearm. Two other men were also charged with taking part in the robbery. The complainant reported that one man approached him, ostensibly seeking help with directions; a second man then approached with a gun; a third man kept lookout. After taking a black bag from Dunn, the three men ran away together. Appellant was arrested with his co-defendants; the black bag was in the room with the men.2 The 2013 Plea The hearing on appellant’s guilty plea began on January 16, 2013. Appellant initially intended to enter an open plea of guilty. The trial judge explained appellant’s absolute right to go to trial and to plead not guilty, to confront all witnesses against him, and to defend himself using his own testimony and testimony from others. She informed appellant that if he was found guilty at trial, he would be subject to punishment ranging from five to ninety-nine years or life in prison; she also explained that with an open plea, she could assess his punishment in that same range. The judge stressed that she would only accept the plea if appellant assured her that 2 The record indicates that, before the plea proceedings at issue, Dunn identified the three men and the trial judge heard testimony from appellant’s co-defendants implicating him in the robbery. Their testimony was not made part of appellant’s record. –2– he was guilty, that “if [he said] something like, Well, I didn’t know what was going on, I had no intention of helping anyone commit a robbery,” she would not accept it, “because [she doesn’t] punish people that are telling [her] that they’re innocent.” Appellant stated that he understood. The judge went on to stress that if appellant was merely present at the scene, that fact did not make him guilty; he was guilty only if he did something to help the others who held the gun and took the property. 3 The judge asked the State for its evidence other than the co-defendants’ testimony and appellant’s presence at the site of the robbery. The prosecutor referred her to the complainant’s report of the robbery. The judge read through the complaint, and appellant identified the co-defendant who had taken each action Dunn described, i.e., who approached Dunn asking for directions, and who held the gun. Then the following exchange took place: THE COURT: . . . [The complainant] said that he observed another male keeping lookout. Who was that? THE DEFENDANT: That was me. THE COURT: Were you keeping lookout? THE DEFENDANT: Yes, ma’am. THE COURT: Well . . . THE DEFENDANT: I wasn’t – 3 Early in the hearing, the judge and trial counsel discussed earlier testimony the judge had heard from the two co-defendants. The judge explained to appellant that their testimony alone was not sufficient to convict him. –3–  THE COURT: Yeah. You don’t think that’s helping somebody commit a crime? What would you have done if you saw somebody coming? THE DEFENDANT: I would have – I guess I would have told them. THE COURT: You guess? THE DEFENDANT: I would have. THE COURT: Okay. So, yeah, that’s participating in the offense. That’s helping somebody commit a crime. THE DEFENDANT: But before they – before they even went to do this and they told me they were going to do it, I told them, Y’all can do it. I’m standing in the back. I was lingering in the back. I wasn’t even . . . THE COURT: Well, either you were acting as a lookout or you weren’t. When they interview you, what are you going to tell them, that you were acting as a lookout or that you weren’t? THE DEFENDANT: I was. THE COURT: Well, then, you are guilty, sir. The judge confirmed that appellant’s counsel had explained the law of parties to appellant and again asked him if he wanted a jury trial. Appellant answered that he did not. Based on appellant’s acknowledging his role as lookout, the prosecutor offered him a plea agreement: appellant would plead guilty to aggravated robbery, the State would seek a sentence of deferred adjudication community supervision for eight years, and appellant would testify against his co-defendants. The plea agreement included written admonitions concerning the effects of his plea. And after appellant confirmed orally that no one was forcing him to enter into this agreement, he was arraigned. The State offered his judicial confession to the offense, and it was –4– admitted by the trial court. The judge accepted appellant’s plea, specifically finding that he was competent to make it, that it was made freely and voluntarily, and that— based on the plea and evidence presented—there was “enough to find [him] guilty as charged.” The judge then adjourned to allow the probation department to interview appellant for a pre-sentence report.4 The trial court subsequently re-opened appellant’s hearing and again found that the evidence was sufficient to substantiate appellant’s guilt beyond a reasonable doubt. The court then deferred adjudication and placed appellant on community supervision for eight years. The 2019 Proceedings In January 2019, the State filed and pursued its third motion to adjudicate appellant’s guilt.5 Appellant pleaded true to the State’s allegations that he had violated terms of his community supervision, including failure to report to his probation officer. The trial court adjudicated appellant’s guilt for the 2012 aggravated robbery and assessed his punishment at seven year’s confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed. 4 The notes from the probation interview are included in our record. During the interview, appellant again stated that he acted as the lookout for the robbery. 5 The State had filed but not pursued two earlier motions to adjudicate appellant’s guilt. –5–  Validity of the 2013 Plea Appellant contends that his 2013 plea was invalid because he did not make an adequate admission of guilt for the charged robbery. He argues that by accepting his plea without requiring a strong factual basis for it, the trial court violated article 1.15 of the code of criminal procedure and appellant’s rights under the Due Process Clause of the United States Constitution. He argues further that because the trial court erroneously accepted appellant’s inadequate admission of guilt, the 2013 order of deferred adjudication was void and, as a result, the 2019 judgment adjudicating his guilt is void as well. At the outset, we reject appellant’s argument that acceptance of his 2013 plea violated his rights under the Due Process Clause. “The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge.” Ex parte Williams, 703 S.W.2d 674 , 682 (Tex. Crim. App. 1986). The United States Constitution does not require more than such a plea: the State need not present evidence in support of a guilty plea in Texas courts to satisfy the Constitution’s requirements of due process. Menefee v. State, 287 S.W.3d 9 , 13 (Tex. Crim. App. 2009). Article 1.15, on the other hand, requires that sufficient evidence support a guilty plea. TEX. CODE CRIM. PROC. ANN. art. 1.15. Specifically, the article permits conviction for a felony, based upon a plea, only if (a) the defendant has waived his right to trial in writing, and (b) the State has introduced evidence into the record –6– showing the guilt of the defendant, and that evidence has been accepted by the court as the basis for its judgment. Id. The statute specifically states that “in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Id. Once a defendant has entered his guilty plea, however, the State is no longer required to prove his guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325 , 330 (Tex. App.—Dallas 2006, no pet.). “Instead, the supporting evidence must simply embrace every essential element of the offense charged.” Id. (citing Stone v. State, 919 S.W.2d 424 , 427 (Tex. Crim. App. 1996)). If the defendant makes a judicial confession that covers all of the elements of the charged offense, it will suffice to support the guilty plea. Menefee, 287 S.W.3d at 13 . In this case, appellant judicially confessed to the charge of aggravated robbery with a deadly weapon, and his confession was admitted into evidence by the trial court. His confession tracked his indictment. Appellant admitted that on August 27, 2012, in Dallas County, Texas, he had intentionally and knowingly—in the course of committing theft of property and with the intent to obtain or maintain control of that property—threatened and placed Dunn in fear of imminent bodily injury and death, and he had used and exhibited a firearm in that process. These admissions embrace every element of the offense of aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2). Appellant’s testimony in support of his plea did not contradict his confession. Despite his assertions in this Court that he was merely present at the scene of the –7– robbery, appellant testified—and then confirmed—that he acted as lookout for his co-defendants and that he would have told them if he saw someone coming. When the robbery was completed, appellant ran away with his co-defendants, and he was arrested with them in the presence of the stolen property. We conclude the State presented sufficient evidence to support appellant’s guilty plea; we discern no error under article 1.15. We understand appellant’s final argument to contend that even if there were sufficient evidence to support his guilty plea, the plea was invalid because it was not entered into “knowingly, voluntarily, and with an understanding of the law in relation to the facts.” In support of this contention, appellant points to “[t]wo separate retractions of his ‘admissions’ that he acted as a ‘lookout.’”6 We disagree that appellant retracted any part of his confession or testimony. Early in his testimony, the trial judge explained in detail that his mere presence at the scene was not enough to convict him. She assured him that if he went to trial, she would instruct the jury concerning that rule. She asked appellant directly whether he was “just there,” and appellant initially answered “Yes.” At this point, the judge clarified appellant’s answer and its legal effect: 6 Appellant does not contend that he was not properly admonished. The record contains both oral and signed written warnings of the effects of his guilty plea. Correct admonishments are prima facie evidence that a plea was voluntary. Martinez v. State, 981 S.W.2d 195 , 197 (Tex. Crim. App. 1998) (“A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily.”). –8–  THE COURT: You were just there, you knew what they were going to do, but you [didn’t] do anything to help them; is that right? THE DEFENDANT: Yes, ma’am. THE COURT: Okay. Well, then, you’re not guilty and I’m not accepting your plea of guilty. However, as the hearing progressed, appellant explained the events of the robbery to the judge, including what each of the co-defendants had done, and he testified repeatedly that he was keeping lookout. When the judge explained that being a lookout was participating in the offense, she gave appellant another opportunity to change his version of the facts: THE COURT: Well, either you were acting as a lookout or you weren’t. When [the probation department] interview[s] you, what are you going to tell them, that you were acting as a lookout or that you weren’t? THE DEFENDANT: I was. THE COURT: Well, then, you are guilty, sir. Despite the trial judge’s giving him every opportunity to do so, appellant did not retract his admissions that he acted as the lookout and thus participated as a party in the robbery. We conclude that appellant’s original guilty plea was valid. Accordingly, we overrule his single issue. –9–  Conclusion We affirm the trial court’s judgment. /Bill Pedersen, III// BILL PEDERSEN, III JUSTICE 190621f.u05 Do Not Publish TEX. R. APP. P. 47 –10–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT CHASE RUNNELS, Appellant On Appeal from the 204th Judicial District Court, Dallas County, Texas No. 05-19-00621-CR V. Trial Court Cause No. F-1239674-Q. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Myers and Garcia participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of January, 2021. –11–

2020-01-17 22:02:08.818678+00

Phillips

OPINION. Phillips: This matter corned before us on motion of Emlen P. Frame for permission to file an intervening petition. The Commissioner determined that there was a deficiency in estate tax of $27,364.57 due from the estate of Caroline W. Frame. The executors of that estate duly filed a petition with the Board alleging in part as follows: (4) The determination of the Federal Estate Tax set forth in said notice of deficiency is based upon the following errors: [[Image here]] *301(b) Under the beading “ Other Miscellaneous Property,” the claim against Emlen P. Erame is erroneously determined to have been of the value of $112,311.73. ******* (5) The facts upon which the petitioner relies as the basis of this proceeding are as follows: * $ * * * * * (b) Under the heading “ Other miscellaneous property,” the claim against Emlen P. Frame is determined to have been of the value of $112,311.73. By virtue of an agreement entered into between said Emlen P. Erame and other parties in interest, dated August 25, 1925, it was provided in paragraph “ Tenth ” [the party of the third part being Emlen P. Frame]: “ Said party of the third part hereby covenants and agrees that if any Federal Estate tax or any inheritance or transfer tax is assessed against the estate of said Charles P. Frame, deceased, or against the estate of said Caroline W. Frame, deceased, by reason of said assignment, dated February 4, 1896, by said party of the third part to said Charles P. Frame, of the remainder interest of the party of the third part in said two trust funds created under the last will and testament of Samuel Willets, for the benefit of Caroline W. Frame, the said party of the third part will pay the same forthwith upon being notified of the amount of such tax or taxes.” By reason of said provision the real party in interest with regard to any tax to be assessed herein against the said claim is the said Emlen P. Frame. The said Emlen P. Frame makes the claim that there is not and was not among the assets of the estate of Caroline W. Frame any claim or right against the said Emlen P. Frame of any kind, and that there was no such claim or right which passed upon the death of Mrs. Frame to her estate, and the said Emlen P. Frame asserts the following particular grounds for his said claim: 1. No indebtedness of Emlen P. Frame to his father existed at the time of the death of Caroline W. Frame. 2. No such indebtedness existed at the time of the death of Charles P. Frame, and therefore no claim or right against Emlen P. Frame could pass upon the death of Charles P. Frame to Caroline W. Frame. 3. The so-called assignment was not intended by Charles P. Frame to have any validity or ever to be enforced against Emlen P. Frame. 4. Charles P. Frame forgave Emlen P. Frame any obligations or debts which Emlen P. Frame might have incurred to Charles P. Frame. 5. Caroline W. Frame never made any claim or demand upon or by reason of the said alleged assignment or of any debts purported to be secured thereby, and in fact, affirmatively disclaimed any right to assert any claim against Emlen P. Frame. 6. The obligation of Emlen P. Frame under the said so-called assignment or any indebtedness purported to be secured thereby, if any such obligation ever existed, was at the time of the death of Caroline W. Frame barred by the Statute of Limitations; 7. The so-called assignment gave rise to no claim against Emlen P. Frame. The petitioners do now assert such claim on behalf of said Emlen P. Frame and respectfully ask that they be given full and fair opportunity to present such evidence in support of the foregoing contentions as said Emlen P. Frame may make available, and to that end your petitioners respectfully reguest that counsel duly entitled to practice before your honorable body, selected by said Emlen P. Frame, be heard upon this matter. *302In the litigation referred to in the Official Examiner’s report, now pending in the Surrogates’ Court of New York County, the Surrogates’ Court has upheld the said agreement entered into by said Emlen P. Erame, dated August 25, 1925. Your petitioners have no knowledge or information sufficient to form a belief as to whether or not an appeal will be taken from the decree entered in said court, but in the event that such an appeal is taken and said decree is reversed and the said agreement set aside either in whole or in part, it may become the duty of the Executors of the estate to assert that the said assignment dated February 4, 1896, is a valid and enforceable assignment, constituting a part of the assets of the estate; but the said executors do not make this contention in this proceeding. In his motion for leave to intervene, Emlen P. Frame states as reasons therefor. That the Executors of the Estate of Caroline W. Frame, deceased, while they have named as one of the points in their petition, a protest against the inclusion in the gross estate of the decedent as the basis of the estate tax, a claim against the petitioner herewith, Emlen P. Frame, in the amount of $112,311.73, are in fact, taking an incompatible position in respect of such claim in the probate proceeding pending in the Surrogate’s Court of New York County, wherein said Executors have alleged and insisted that the Estate of Caroline W. Frame had and have a claim against Emlen P. Frame, petitioner herein. That by reason of petitioner’s interest in the Estate and because of a collateral agreement made by him to pay taxes growing out of the assessment of estate taxes on the supposed claim of the Estate against petitioner, this petitioner is under the necessity of showing that the aforesaid claim against him is absolutely null and void and without value. Petitioner further shows that the Executors, in their petition, have asked the Board to afford this petitioner, Emlen P. Frame, a full and fair opportunity to present such evidence in support of his contention that there exists no claim against him, which the Estate is entitled to include as an asset for the purpose of taxation. The intervening petition which Emlen P. Frame asked leave to file, which is attached as part of his motion papers, alleges that he is an interested party because of said agreement to pay estate tax and because of an interest in the residuary estate of the decedent. Notice of the determination of a deficiency was mailed by the Commissioner under date of May 21, 1929. It is clear that the issue to be determined is one which rises between the Commissioner and the executors of the estate and may be fully settled without the presence of the intervenor. Any interests which he may have are entirely subordinated to the rights between the present parties to this proceeding and may be protected properly by him in other proceedings in another forum. There can be no question that he is not a necessary party to this proceeding and that he may not intervene as a matter of right. It may be doubtful whether this Board would have power to join the intervenor as a party to the proceeding against his wishes. But it is within the sound discretion of the body before which a controversy is pending to permit intervention where the intervenor *303has an interest in the controversy which is contrary to that of either of the parties and which otherwise might not be protected in such proceeding or where such intervention appears necessary to simplify and completely administer justice under the facts of the particular case. Williams v. Morgan, 111 U. S. 684; Minot v. Masten, 95 Fed. 737; Farmers Loan & Trust Co. v. Toledo Ry. Co., 67 Fed. 49. Such appears to be the case here. It may be said that there is no provision in the statute creating this Board which provides for intervention. It seems a sufficient answer to point out that the Board was created for the purpose of providing a forum in which controversies between taxpayers and the Commissioner might be heard and decided to the end that the correct tax liability should be determined and that presumably the Board may take such reasonable steps not in conflict with the statute as may be designed to accomplish the purpose of its creation. That the intervening petitioner has an interest in showing that the Commissioner committed error is beyond question. His petition offers no new issue and it would seem that the situation existing in the present case is such that a more complete presentation of the issue is to be expected and a correct determination of the tax liability is more likely to be reached if the motion for intervention is granted. We do not consider it necessary in the present opinion to attempt to determine the extent to which an intervenor will be bound by the decision of the Board. That question may be answered when it is raised. It would seem, however, that in many instances multiplicity of proceedings might be avoided by intervention, with all the benefits which follow. An order will be entered permitting Emlen P. Frame to intervene as a petitioner and file the petition tendered on his behalf. Beviewed by the Board. Van Fossan dissents.

2020-01-17 22:02:08.862049+00

Phillips

OPINION. Phillips : The Commissioner gave notice to petitioner that, as provided in section 280 of the Revenue Act of 1926, there was proposed for assessment against it the amount of $1,494.01, constituting its liability as a transferee of the assets of Norwich Woolen Mills Co. for income and profits-tax liability of that company for the period January 1, 1921, to March 7, 1921. The petitioner filed its petition alleging that the determination of the Commissioner was based upon the following errors: The assumption by the Commissioner of Internal Revenue that the operations from January 1, 1921 to March 7, 1921, were conducted by the Norwich Woolen Mills Co. and its affiliated companies when as a matter of fact these operations wore conducted by the Norwich Woolen Mills Corp. Even if there had boon separate operation by th eNorwich Woolen Mills Co. and its affiliated companies for the period from January 1, 1921, to March 7, 1921, these operations would form part of a consolidation for the entire calendar year 1921 and would be taken in the return of the Norwich Woolen Mills Corporation as parent of the consolidated group. Such a consolidated return would be exactly similar to that made already by the Norwich Woolen Mills Corp. Even if there lmd been separate operations and no consolidation, the Commissioner of Internal Revenue has prorated the entire income for 1921 in order to arrive at that operar ons chargeable to the period from January 1 to March 7, 1921. In making this proration, the Commissioner has not used the net result for the entire year but has attempted to eliminate from this net result certain losses and calculated the proration on the remaining amount. The limitation period of four years for the purpose of making additional assessments under the Revenue Act of 1921 has already expired and, therefore, no additional tax can be assessed under the law. The petitioner is not a transferee of assets as defined in section 280 of the Revenue Act of 1926 and, therefore, the additional year allowed in order to make assessments is not applicable to its case. The respondent in his answer denied that any error had been committed and set out the f^s oil which he relied to establish the lia*305bility of petitioner for the deficiency in tax due from the Norwich Woolen Mills Co. The parties submitted this proceeding upon a stipulation reading as follows: It is hereby stipulated and agreed by and between the parties hereto, through their respective counsel, that the following facts are true and may be found to be such by the Board without however precluding the right of either party to introduce other and further evidence not inconsistent therewith and without waiving the right of either of the parties hereto to object to the relevancy, materiality, or competency of any of said facts: 1. That the Norwich Woolen Mills Corporation was incorporated under the laws of the State of Connecticut on March 7, 1021, and was in fact a merger of three existing corporations, namely, Norwich Woolen Mills Company, AVin-chcster AVoolen Company, and Liberty Woolen Mills Company. 2. That the three corporations. last above named were for the period from April 1, 1020, to March 7, 1021, affiliated for income tax purposes. 3. That said three corporations above named, the merger of which resulted in the organization of petitioner, filed a consolidated income tax return for the fiscal year ended March 31, 1920. 4. That said corporations on July IS, 1921, filed a consolidated income-tax return for the period begun April 1, 1920, and ended December 31, 1920, a copy of which return is hereto attached, Marked Exhibit A, and by reference made a part hereof, which said return was the last return ever filed by or on behalf of said corporations. 5. That said corporations did not subsequent to March 31, 1920, request permission from the Commissioner of Internal Revenue to change their period of filing income-tax returns. 6. That the operations of said Norwich AVoolen Mills Company, Winchester Woolen Company, and Liberty AVoolen Mills Company from January 1, 1921, to March 7, 1021, were included in the return filed by this petitioner for the calendar year 1921. 7. That the. books of this petitioner were opened as of January 1, 1921, and included all the operations from that date of the three corporations hereinbefore named which were on March 7, 1921, merged into petitioner corporation, and that no entries were made in the books of said three corporations subsequent to December 31, 1920. 8. That the net income of petitioner from sales during the entire year 1921 as shown by its books was the sum of $93,683.72. That during the latter part of said year and subsequent to March 7 petitioner sustained a loss on a sale of capital assets in the sum of $483,524.69, and as a result thereof a net loss for the calendar year 1921 in the sum of $389,S40.97. 9. That the transaction by which this petitioner acquired the assets of the Norwich Woolen Mills Company rendered this petitioner liable at law or in equity as a transferee for such deficiency in income and profits taxes for the period beginning December 30, 1920, and ending March 7, 1921, as is found to be due from the Norwich Woolen Mills Company. The return attached to the stipulation as Exhibit A states at the head thereof that it is for the period begun April 1, 1920, and ended December 31, 1920, and is for the Norwich Woolen Mills Co. and affiliated companies. Such return contains the usual data with re*306spect to amounts of income and deductions with supporting schedules. There is also attached to such return a- schedule “ N,” reading as follows: The Norwich Woolen Mills Company and Affiliated Companies Statement as to Period Covered by Return The fiscal year of The Norwich Woolen Mills Company and the affiliated companies consolidated in this return have heretofore terminated on March 31. The last income and profits tax return so filed was for the fiscal year ended March 31, 1920. The attached return is filed for the period from April 1, 1920, to December 31, 1920, for the reason that the Norwich Woolen Mills Corporation, a corporation organized in March, 1921, under the laws of the State of Connecticut, acquired in March, 1921, the entire capital stock of these affiliated companies consolidated as aforesaid, through the issue of its own capital stock, and at the time of acquisition of the stock of these affiliated companies made the transaction effective as of December 31, 1920. Through making the transaction retroactive to December 31, 1920, the Norwich Woolen Mills Corporation assumed and placed upon its own books the operations of the affiliated companies from January 1, 1921, to the date of acquisition in March, 1921. The Norwich Woolen Mills Company and the affiliated companies consolidated in this return were not, however, dissolved until shortly after their acquisition by the Norwich Woolen Mills Corporation. On March 7, 1921, the preliminary certificates of dissolution were forwarded to the Secretary of State, Hartford, Connecticut, and the affairs of the companies were closed up at about this date. Inasmuch, as the operations of these companies from January 1, 1921, to the date of their dissolution were wholly assumed by the Norwich Woolen Mills Corporation and the entries recording such operations were placed upon the books of the latter company, the operations for this period have been omitted in the preparation of this return, and the return has been filed for the period from April 1, 1920, to December 31, 1920, during which period the companies were operating for their own account and had no connection with the Norwich Woolen Mills Corporation. The books of the Norwich Woolen Mills Corporation were opened as of January 1, 1921, although the corporation itself was not formed until the following March. It is the intention of the Norwich Woolen Mills Corporation to report in its income tax return for the taxable year 1921, the operations of The Norwich Woolen Mills Company and the companies consolidated herewith recorded on its own books for the period from January 1, 1921, to the date of its organization. It is clear that assignment of error (a) is not well founded in fact, for it appears from the stipulation that the Norwich Woolen Mills Corporation was not incorporated until March 7,1921. The business from January 1 to March 7, 1921, was conducted by the predecessor corporations and they are liable for the tax. That they did not enter their operations on their books, and that the petitioner entered the operations for this period on its books can not aifect the liability of the person transacting the business to pay the tax. *307Assignment of error (b) is founded on the theory that the petitioner and the predecessor companies were an affiliated group which should file one return for the calendar year 1921. The stipulation states that the petitioner is a merger of three predecessor companies. It does not set out any facts from which we might determine whether this was a merger in the sense that the three predecessor corporations continued their existence in the petitioner or whether a new corporation was formed which acquired or “ merged ” the assets of the predecessor corporations. The legal effects flowing from each of these transactions would differ. See A. J. Siegel, 4 B. T. A. 186, and cases there cited. The stipulation states however, that petitioner “ was incorporated ” on March 7, 1921, and the statement attached to the petition indicates that it was an entirely new legal entity, acquiring the stock of the predecessor companies in exchange for its own stock and then causing their dissolution and the distribution of their assets to it. The petitioner was not a continuation of the old companies, but a new taxable person. See Marr v. United States, 268 U. S. 536. Since the predecessor corporation and petitioner were distinct taxable entities and since they were not affiliated under section 240 of the Revenue Act of 1921, they were under obligation to file separate returns of their separate incomes. The next assignment of error has to do with the computation of net income for the period from January 1, to March 7, 1921, by prorating the income from operations over the entire year. It does not appear to be disputed that the Commissioner has power to compute the income of the period in this manner when necessary or that the necessity existed in this case. See Edwards v. Douglas, 269 U. S. 204, and Mason v. Routzahn, 275 U. S. 175. Petitioner urges, however, that if the earnings of this period are to be computed by prorating the earnings of the year, the Commissioner can not exclude from the yearly earnings, losses sustained on the sale of capital assets and prorate the operating income. We see no reason for disturbing the computation made by the Commissioner. That which he sought to do was to determine the earnings of the business for the period from January 1 to March 7. This he should do by the most accurate method available. If it be necessary to use the method of prorating yearly earnings and it appears that capital gains or losses should be eliminated and that only the operating income should be prorated in order that the proration may more accurately reflect the actual earnings of the period, we haye no doubt he should follow that course. It would seem that the method used here is more likely to accomplish the proper result than would a prorating of an amount which reflected capital losses not affecting the period for which the earnings are to be computed. *308The last assignment of error is that the period for assessing additional taxes had expired when the statutory notice of the Commissioner’s action was mailed to the petitioner on December 2, 1926. Petitioner urges that if the predecessor companies are not entitled to include their income for 1921 in that of petitioner, such income must be included in their return which was filed on July 18, 1921, purporting to cover the period from April 1, to December 31, 1920. It is urged that since previous returns were made by these companies for fiscal years ending on March 31, and no permission was requested from the Commissioner to make any change, they were required to include in this return the income from January 1 to March 7, 1921. We do not believe this position is well taken. Section 212 of the Revenue Act of 1918 provides: If a taxpayer changes his accounting period from fiscal year to calendar year, from calendar year to fiscal year, or from one fiscal year to another, the net income shall, with the approval of the Commissioner, be computed on the basis of such new accounting period, subject to the provisions of section 226. The approval of the Commissioner may be evidenced otherwise than by a consent given pursuant to a request before the change is made. Here the Commissioner has accepted the return for the period ended December 31,1920, as a proper return and has proceeded to compute a tax for the period beginning the following day. While the filing of a return upon a changed basis of accounting does not bind the Commissioner to accept the changed basis, there is nothing to prevent its acceptance, and when he takes action which can be consistent only with an approval of such a change in basis, such approval must be inferred. See United States ex rel. Greylock Mills v. Blair, Commissioner, 293 Fed. 846; Gardner Governor Co., 5 B. T. A. 70. The contention would have to be denied on other grounds. The return filed appeared on its face to cover only the period to December 31, 1920. It included only the income to that date. No return has ever been filed by the predecessor companies for any period after that date. The period within which assessments may be made does not begin to run until a return is filed. A return for nine months is not a return for twelve months, even though a twelve months’ return should have been filed which would include the nine months for which the return was filed. Paso Robles Mercantile Co., 12 B. T. A. 750; affd., 33 Fed. (2d) 653; certiorari denied by Supreme Court 280 U. S. 73 A.; Lowenstein Bros. Garment Co., 13 B. T. A. 446. No return having been filed for the period in question, assessment and collection are not barred by limitation. *309The deficiency appears to have been properly asserted against the Norwich Woolen Mills Co. Under paragraph 9 of the stipulation the petitioner admits its liability as a transferee for any deficiency found due. Reviewed by the Board. Decision mil Toe entered for the respondent. Sternhagen, Van Fossan, and Murdock concur in the result only.

2020-12-03 20:02:31.355478+00

https://www.courts.ca.gov/opinions/nonpub/E074761.PDF

Filed 12/3/20 In re C.A. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re C.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, E074761 Plaintiff and Respondent, (Super.Ct.No. RIJ1900528) v. OPINION C.A., Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge. Affirmed as modified. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent. 1  FACTUAL AND PROCEDURAL HISTORY A. PROCEDURAL HISTORY On December 11, 2019, a petition under Welfare and Institutions Code section 602 charged defendant and appellant C.A. (minor) with unlawful taking of a vehicle under Vehicle Code section 10851, subdivision (a) (count 1), and receiving stolen property under Penal Code section 496d, subdivision (a) (count 2). On January 21, 2020, pursuant to a plea agreement, minor admitted count 1 and the juvenile court dismissed count 2. On January 27, 2020, a detention hearing report filed by the probation department noted that minor had three prior juvenile dispositions in Orange County. First, minor admitted to unauthorized possession of a controlled substance under Health and Safety Code section 11377, subdivision (a), and possession of an instrument for injecting or smoking controlled substances under Health and Safety Code section 11364. Second, minor admitted to unauthorized possession of a controlled substance under Health and Safety Code section 11377, subdivision (a), and false representation to a peace officer under Penal Code section 148.9, subdivision (a). Third, minor had a delinquency petition sustained for shoplifting under Penal Code section 459.5, subdivision (a). The matter was transferred for disposition to Riverside County, minor’s county of residence. On February 11, 2020, at a contested disposition hearing, the juvenile court ordered minor committed to the Youth Treatment and Education Center for a period not to exceed minor’s maximum time of confinement of seven years four months. The court 2 also ordered various terms and conditions of probation, including an electronic devices search condition. On February 18, 2020, minor timely filed her notice of appeal. For reasons set forth post, we will modify the dispositional order to strike the electronics search probation condition imposed by the juvenile court. (See, In re Ricardo P. (2019) 7 Cal. 5th 1113 (Ricardo P.)). B. FACTUAL HISTORY The factual basis of minor’s admission is as follows: “On 11/18/19 in Orange County, CA, I did unlawfully drive and take a 2015 BMW not my own, without the consent of the owner & with intent to temporarily & permanently deprive the owner of his/her title to & possession of the vehicle.” DISCUSSION The electronic search condition imposed by the juvenile court states as follows: “That the minor be subject to search and seizure of all personal electronic devices for electronic communication information pursuant to California Penal Code (PC) §§1546, 1546.1, 1546.2, and 1546.4; and must submit to search of all computers, hard drives, flash drives, thumb drives, disks, removable media, computer networks, electronic data storage devices, personal digital assistants, cellular telephones, smart phones, iPads, Notebooks, Chromebooks, and any other electronic devices and the like and their progeny (‘Computers and Electronic Devices’) under the custody or control of the minor to which he/she has sole, shared, partial, or limited access as an ‘Authorized Possessor,’ without a search warrant, at any time of the day or night by the probation officer and/or 3 any law enforcement officer. These search terms are to include a waiver of any password or encryption protection. The minor must provide all passwords, logins, access codes or other information necessary to access any such Computers and Electronic Devices and to access all social media accounts the minor may have (such as Facebook, My Space, MocoSpace, Instagram, Snapchat, etc.) and their progeny, when requested by the probation officer and/or any law enforcement officer. The minor shall not possess or utilize any program or application on any Computer or Electronic Device that automatically or through a remote command deletes or scrubs data from that Electronic Device. If an Electronic Device(s) is/are seized as evidence, the minor may not contact their service provider to remove, alter or destroy data from the Electronic Device. By accepting this search term, both parties stipulate that the minor is providing ‘specific consent’ to the Riverside County Probation Department and/or any law enforcement officer to search any and all devices pursuant to §1546(k) PC that he/she possesses, controls or owns. Failure to provide a password or access to a Personal Electronic Device will be considered a violation of probation.” On appeal, minor contends that the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal. 3d 481 (Lent) as clarified by the California Supreme Court in Ricardo P., supra , 7 Cal. 5th 1113 . Moreover, minor contends that the search condition is unconstitutionally overbroad. We agree the condition must be stricken under Lent and Ricardo P., and do not reach the constitutional question. 4  “The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.” (People v. Carbajal (1995) 10 Cal. 4th 1114 , 1120.) Penal Code section 1203.1 authorizes a sentencing court to impose “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.” (Pen. Code, § 1203.1, subd. (j).) A juvenile court may impose on a minor on probation “any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) “A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.” (In re Josh W. (1997) 55 Cal. App. 4th 1 , 5; In re Sheena K. (2007) 40 Cal. 4th 875 , 889.) In Lent, supra , 15 Cal. 3d 481 , the California Supreme Court articulated the following test to determine whether a probation condition constitutes an abuse of discretion: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’ ” (Id. at p. 486.) “This test is conjunctive—all three prongs 5 must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal. 4th 375 , 379 (Olguin).) “As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at pp. 379-380.) The Lent test applies to juvenile probation conditions. (In re P.O. (2016) 246 Cal. App. 4th 288 , 294; In re D.G. (2010) 187 Cal. App. 4th 47 , 52.) In Ricardo P., the California Supreme Court addressed whether an electronics search condition requiring a minor to submit electronics (including passwords) to search by a probation officer met the third prong of the Lent test. (Ricardo P., supra , 7 Cal.5th at pp. 1116-1117, 1119.) The minor in Ricardo P. admitted two counts of felony burglary. (Id. at p. 1115.) There was no indication that an electronic device was used in connection with the burglaries. However, the probation report indicated that the minor was using drugs at the time he committed the offense, and the juvenile court further believed that “teenagers ‘typically’ brag about . . . drug use on social media.” (Id. at p. 1119.) The juvenile court imposed probation conditions prohibiting the minor from using or possessing illegal drugs, as well as an electronics search condition “to enable probation officers to monitor whether [the minor was] communicating about drugs or with people associated with drugs.” (Ibid.) The California Supreme Court concluded that, even assuming the minor was using drugs at the time he committed the burglaries and that teenagers tend to brag about drug use online, the electronics search condition satisfied Lent’s third prong. (Ricardo P. , 6 supra , 7 Cal.5th at pp. 1119-1120.) The condition was invalid under that prong because “the burden it impose[d] on [the minor’s] privacy [was] substantially disproportionate to the condition's goal of monitoring and deterring drug use.” (Id. at p. 1120.) First, the California Supreme Court explained that there must be a “closer relationship” between the probation condition and deterring future criminality. (Ricardo P., supra , 7 Cal.5th at p. 1120.) This relationship must be “more than just an abstract or hypothetical relationship.” (Id. at p. 1121.) The court noted that “ ‘[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable’ under Lent.” (Id. at p. 1127.) The court then explained that the record contained “no indication that [the minor] had used or will use electronic devices in connection with drugs or any illegal activity, [was] insufficient to justify the substantial burdens imposed by [the] electronics search condition.” (Id. at p. 1116.) The court stated that “requiring a probationer to surrender electronic devices and passwords to search at any time is . . . burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Id. at p. 1126.) Thereafter, the Supreme Court clarified that the third prong under Lent does not require a “nexus” between the probation condition and the underlying offense or prior offenses. (Ricardo P., supra , 7 Cal.5th a p. 1122.) The court explained that “ ‘conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing [the defendant’s] future criminality’ [citation]. For example, courts may properly base 7 probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense.” (Ibid.) Second, the California Supreme Court explained that “Lent’s requirement that a probation condition must be “ ‘reasonably related to future criminality’ ” contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra , 7 Cal.5th at p. 1122.) “A probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a ‘reasonable’ one.” (Id. at p. 1128.) Regarding this proportionality requirement, the court explained that a “probationer’s offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Id. at pp. 1128-1129.) In Ricardo P., the Supreme Court found that such proportionality was lacking in the case before it. The court explained that “nothing in the record suggests that [the minor] has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that [the minor] had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’ Based solely on these observations, the juvenile court imposed a sweeping probation condition requiring [the minor] to submit all of his electronic devices and passwords to search at any time. Such a condition significantly burdens privacy interests.” (Ricardo 8  P., supra , 7 Cal.5th a pp. 1122-1123.) Therefore, the court noted that the electronics search condition was “expansive in its scope: It allows probation officers to remotely access [the minor’s] e-mail, text and voicemail messages, photos, and online accounts, including social media like Facebook and Twitter, at any time. It would potentially even allow officers to monitor [the minor’s] text, phone, or video communications in real time. Further, the condition lacks any temporal limitations, permitting officers to access digital information that long predated the imposition of [the minor’s] probation.” (Id. at p. 1127.) The court then went on to express concern that if it “were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed . . . . Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Ricardo P., supra , 7 Cal.5th at p. 1123.) The court went on to explain that “[t]he plain language of this electronics search condition would require [the minor] to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles. [Citation.] If the juvenile court’s observation that ‘minors typically will brag about their marijuana usage or drug usage’ online were sufficient to justify the 9 substantial burdens the condition imposes, it is hard to see what would be left of Lent’s third prong.” (Id. at pp. 1123-1124.) As in Ricardo P., our analysis of the electronics search condition in this case is limited to the third prong of the Lent test. The record contains no evidence minor used any electronics or electronic communications in the commission of her criminal activity, and use of these electronic devices and services is presumptively legal activity. Thus, like in Ricardo P., the electronics search condition here apparently satisfies the first two prongs of Lent. Therefore, the issue on appeal is whether the third criterion under Lent is met: Whether the electronic search condition is reasonably related to minor’s future criminality. In this case, at the contested disposition hearing, in upholding the broad electronic search condition, the juvenile court relied on its concern that the 17-year-old minor may have been exploited by older adult males who participated in offenses that minor had previously committed. The court stated: “Just because we don’t have any evidence about sexual exploitation, any time an adult is committing a crime with a minor, . . . he’s exploiting her for [his] own criminal gain . . . not necessarily—I don’t know of any other information, but the threat is always there and that’s enough for the Court to want to make sure that Probation has the opportunity to look at her. [¶] . . . [¶] . . . I think that based upon the number of charges how quickly and how active she was, and because a number of those involved male adults [I] think that risk alone . . . is enough to substantiate an intrusion into her privacy 10 of her cell phone. She didn’t have to necessarily use it as means to conduct these charges, but most likely she did. . . . Who she’s hanging out with and what they’re talking about, I want to know.” We disagree with the trial court. The wide-ranging electronics search condition is not proportional to the crimes at issue here or the possible future criminality envisioned by the trial court. (See Ricardo P., supra , 7 Cal.5th at pp. 1120, 1121 [there must be a “closer relationship” between the probation condition and deterring future criminality, and this relationship must be “more than just an abstract or hypothetical relationship”]) We are aware that “[t]the permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults.” (In re Victor L. (2010) 182 Cal. App. 4th 902 , 910.) “ ‘The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents’ [citation], thereby occupying a ‘unique role . . . in caring for the minor’s well-being.’ [Citation.] In keeping with this role, [Welfare and Institutions Code] section 730, subdivision (b), provides that the court may impose ‘any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” (Id. at pp. 909-910.) “ ‘[E]ven where there is an invasion of protected freedoms “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” ’ [Citation.] This is because juveniles are deemed to be ‘more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed.’ [Citation.] Thus, ‘ “a condition of probation that would be 11 unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.” ’ ” (Id. at p. 910.) Still, every probation condition must be made to fit the circumstances and the minor. (In re Binh L. (1992) 5 Cal. App. 4th 194 , 203.) Unlike an adult probationer, a juvenile “ ‘ “cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation.” [Citation.] Courts have recognized that a “minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor.” ’ ” (In re J.B. (2015) 242 Cal. App. 4th 749 , 756 (J.B.), quoting Erica R. (2015) 240 Cal. App. 4th 907 , 914 (Erica R.).) Because of the immense amount of personal information that can be stored on electronic devices, and even greater amounts to be found on internet sites the devices can access, electronic search conditions carry obvious implications for constitutionally protected privacy interests. (See, generally, Riley v. California (2014) 273 U.S. 373 , 493.) On appeal, the People argue that, “[w]hen, as here, a minor has been declared a ward of the court because of a history of running away frequently; admitted a history of substance abuse; admitted criminal activity including multiple instances of unlawfully taking a vehicle in a short period of time, which endangered her safety and the safety of others; and involvement of adult males, which raised concerns of commercial sexual exploitation of children and criminal exploitation; and was removed from parental custody [citation], the state may elect to monitor her use of electronic devices. (Antonio R.[ 2000] 78 Cal.App.4th [937,] 941.)” The People, however, point to no evidence in the 12 record that would allow us to infer electronic communications were instrumental in minor’s prior crimes or involvement with adult males. As provided above, there was nothing in minor’s underlying offenses or her probation violations related to the use of electronic devices. Moreover, there was nothing in the history reflected in the probation reports suggesting minor’s underlying offenses related to electronic devices or use of electronic devices for any unlawful purpose or to facilitate or promote unlawful conduct. Furthermore, as the Supreme Court in Ricardo P. stated: “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct.” (Ricardo P., supra , 7 Cal.5th at p. 1123.) Accordingly, we find that the electronic search condition is invalid under Lent and Ricardo P., and therefore an abuse of the juvenile court’s discretion. We hereby exercise our independent power to strike the electronics search condition as invalid under Lent and Ricardo P. (See In re Edward C. (2014) 223 Cal. App. 4th 813 , 829 [striking probation conditions].) Because we find that the probation condition is invalid, we need not address minor’s argument that the condition is overbroad. 13  DISPOSITION The disposition order of February 11, 2020, is modified to strike the probation condition requiring minor to submit to a search of her electronics including her passwords. In all other respects the disposition order is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER Acting P. J. We concur: CODRINGTON J. MENETREZ J. 14

2020-12-03 19:16:10.069195+00

http://wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=311669

OFFICE OF THE CLERK 110 EAST MAIN STREET, SUITE 215 P.O. BOX 1688 MADISON, WI 53701-1688 TELEPHONE (608) 266-1880 FACSIMILE (608) 267-0640 Web Site: www.wicourts.gov December 3, 2020 To: R. George Burnett Joshua L. Kaul Conway, Olejniczak & Jerry, SC Thomas C. Bellavia P.O. Box 23200 Colin T. Roth Green Bay, WI 54305-3200 Colin R. Stroud Wisconsin Department of Justice James R. Troupis P.O. Box 7857 Troupis Law Office, LLC Madison, WI 53707-7857 4126 Timber Lane Cross Plains, WI 53528 David R. Gault Assistant Corporation Counsel Margaret C. Daun Office of the Dane County Corporation Milwaukee County Corporation Counsel Counsel 901 N. 9th Street, Room 303 210 Martin Luther King, Jr. Blvd., Room 419 Milwaukee, WI 53233 Madison, WI 53703-3345 *Address list continued on page 9. You are hereby notified that the Court has entered the following order: No. 2020AP1971-OA Trump v. Evers A petition for leave to commence an original action under Wis. Stat. § (Rule) 809.70, a supporting legal memorandum, and an appendix have been filed on behalf of petitioners, Donald J. Trump, et al. Responses to the petition have been filed by (1) Governor Tony Evers; (2) the Wisconsin Elections Commission and its Chair, Ann S. Jacobs; (3) Scott McDonell, Dane County Clerk, and Alan A. Arnsten and Joyce Waldrop, members of the Dane County Board of Canvassers; and (4) George L. Christensen, Milwaukee County Clerk, and Timothy H. Posnanski, Richard Baas, and Dawn Martin, members of the Milwaukee County Board of Canvassers. A non- party brief in support of the petition has been filed by the Liberty Justice Center. A motion to intervene, a proposed response of proposed respondents-intervenors, and an appendix have been filed by the Democratic National Committee (DNC) and Margaret J. Andrietsch, Sheila Stubbs, Page 2 December 3, 2020 No. 2020AP1971-OA Trump v. Evers Ronald Martin, Mandela Barnes, Khary Penebaker, Mary Arnold, Patty Schachtner, Shannon Holsey, and Benjamin Wikler (collectively, “the Biden electors”). The court having considered all of the filings, IT IS ORDERED that the petition for leave to commence an original action is denied. One or more appeals from the determination(s) of one or more boards of canvassers or from the determination of the chairperson of the Wisconsin Elections Commission may be filed by an aggrieved candidate in circuit court. Wis. Stat. § 9.01(6); and IT IS FURTHER ORDERED that the motion to intervene is denied as moot. BRIAN HAGEDORN, J. (concurring). I understand the impulse to immediately address the legal questions presented by this petition to ensure the recently completed election was conducted in accordance with the law. But challenges to election results are also governed by law. All parties seem to agree that Wis. Stat. § 9.01 (2017–18)1 constitutes the “exclusive judicial remedy” applicable to this claim. § 9.01(11). After all, that is what the statute says. This section provides that these actions should be filed in the circuit court, and spells out detailed procedures for ensuring their orderly and swift disposition. See § 9.01(6)–(8). Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law. Even if this court has constitutional authority to hear the case straightaway, notwithstanding the statutory text, the briefing reveals important factual disputes that are best managed by a circuit court.2 The parties clearly disagree on some basic factual issues, supported at times by competing affidavits. I do not know how we could address all the legal issues raised in the petition without sorting through these matters, a task we are neither well-positioned nor institutionally designed to do. The statutory process assigns this responsibility to the circuit court. Wis. Stat. § 9.01(8)(b) (“The [circuit] court shall separately treat disputed issues of procedure, interpretations of law, and findings of fact.”). We do well as a judicial body to abide by time-tested judicial norms, even—and maybe especially—in high-profile cases. Following the law governing challenges to election results is no threat to the rule of law. I join the court’s denial of the petition for original action so that the petitioners may promptly exercise their right to pursue these claims in the manner prescribed by the legislature. 1 All subsequent references to the Wisconsin Statutes are to the 2017–18 version. 2 The legislature generally can and does set deadlines and define procedures that circumscribe a court’s competence to act in a given case. Village of Trempealeau v. Mikrut, 2004 WI 79 , ¶9–10, 273 Wis. 2d 76 , 681 N.W.2d 190 . The constitution would obviously override these legislative choices where the two conflict. Page 3 December 3, 2020 No. 2020AP1971-OA Trump v. Evers PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). Before us is an emergency petition for leave to commence an original action brought by President Trump, Vice President Pence and Donald Trump for President, Inc., against Governor Evers, the Wisconsin Elections Commission (WEC), its members and members of both the Milwaukee County Board of Canvassers and the Dane County Board of Canvassers. The Petitioners allege that the WEC and election officials caused voters to violate various statutes in conducting Wisconsin's recent presidential election. The Petitioners raised their concerns during recount proceedings in Dane County and Milwaukee County. Their objections were overruled in both counties. The Respondents argue, in part, that we lack subject matter jurisdiction because of the "exclusive judicial remedy" provision found in Wis. Stat. § 9.01(11) (2017-18).3 Alternatively, the Respondents assert that we should deny this petition because fact-finding is required, and we are not a fact-finding tribunal. I conclude that we have subject matter jurisdiction that enables us to grant the petition for original action pending before us. Our jurisdiction arises from the Wisconsin Constitution and cannot be impeded by statute. Wis. Const., art. VII, Section 3(2); City of Eau Claire v. Booth, 2016 WI 65 , ¶7, 370 Wis. 2d 595 , 882 N.W.2d 738 . Furthermore, time is of the essence. However, fact-finding may be central to our evaluation of some of the questions presented. I agree that the circuit court should examine the record presented during the canvasses to make factual findings where legal challenges to the vote turn on questions of fact. However, I dissent because I would grant the petition for original action, refer for necessary factual findings to the circuit court, who would then report its factual findings to us, and we would decide the important legal questions presented. I also write separately to emphasize that by denying this petition, and requiring both the factual questions and legal questions be resolved first by a circuit court, four justices of this court are ignoring that there are significant time constraints that may preclude our deciding significant legal issues that cry out for resolution by the Wisconsin Supreme Court. I. DISCUSSION The Petitioners set out four categories of absentee votes that they allege should not have been counted because they were not lawfully cast: (1) votes cast during the 14-day period for in- person absentee voting at a clerk's office with what are alleged to be insufficient written requests for absentee ballots, pursuant to Wis. Stat. § 6.86(1)(b); (2) votes cast when a clerk has completed information missing from the ballot envelope, contrary to Wis. Stat. § 6.87(6d); (3) votes cast by those who obtained an absentee ballot after March 25, 2020 by alleging that they were indefinitely 3 All subsequent references to the Wisconsin Statutes are to the 2017–18 version. Page 4 December 3, 2020 No. 2020AP1971-OA Trump v. Evers confined; and (4) votes cast in Madison at "Democracy in the Park" events on September 26 and October 3, in advance of the 14-day period before the election, contrary to Wis. Stat. § 6.87. Some of the Respondents have asserted that WEC has been advising clerks to add missing information to ballot envelopes for years, so the voters should not be punished for following WEC's advice. They make similar claims for the collection of votes more than 14 days before the November 3 election. If WEC has been giving advice contrary to statute, those acts do not make the advice lawful. WEC must follow the law. We, as the law declaring court, owe it to the public to declare whether WEC's advice is incorrect. However, doing so does not necessarily lead to striking absentee ballots that were cast by following incorrect WEC advice. The remedy Petitioners seek may be out of reach for a number of reasons. Procedures by which Wisconsin elections are conducted must be fair to all voters. This is an important election, but it is not the last election in which WEC will be giving advice. If we do not shoulder our responsibilities, we leave future elections to flounder and potentially result in the public's perception that Wisconsin elections are unfair. The Wisconsin Supreme Court can uphold elections by examining the procedures for which complaint was made here and explaining to all where the WEC was correct and where it was not. I also am concerned that the public will misunderstand what our denial of the petition means. Occasionally, members of the public seem to believe that a denial of our acceptance of a case signals that the petition's allegations are either false or not serious. Nothing could be further from the truth. Indeed, sometimes, we deny petitions even when it appears that a law has been violated. Hawkins v. Wis. Elec. Comm'n, 2020 WI 75 , ¶¶14–16, 393 Wis. 2d 629 , 948 N.W.2d 877 (Roggensack, C.J., dissenting). II. CONCLUSION I conclude that we have subject matter jurisdiction that enables us to grant the petition for original action pending before us. Our jurisdiction arises from the Wisconsin Constitution and cannot be impeded by statute. Wis. Const., art. VII, Section 3(2); City of Eau Claire, 370 Wis. 2d 595 , ¶7. Furthermore, time is of the essence. However, fact-finding may be central to our evaluation of some of the questions presented. I agree that the circuit court should examine the record presented during the canvasses to make factual findings where legal challenges to the vote turn on questions of fact. However, I dissent because I would grant the petition for original action, refer for necessary factual findings to the circuit court, who would then report its factual findings to us, and we would decide the important legal questions presented. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent. Page 5 December 3, 2020 No. 2020AP1971-OA Trump v. Evers REBECCA GRASSL BRADLEY, J. (dissenting). "It is emphatically the province and duty of the Judicial Department to say what the law is." Marbury v. Madison, 5 U.S. 137 , 177 (1803). The Wisconsin Supreme Court forsakes its duty to the people of Wisconsin in declining to decide whether election officials complied with Wisconsin's election laws in administering the November 3, 2020 election. Instead, a majority of this court passively permits the Wisconsin Elections Commission (WEC) to decree its own election rules, thereby overriding the will of the people as expressed in the election laws enacted by the people's elected representatives. Allowing six unelected commissioners to make the law governing elections, without the consent of the governed, deals a death blow to democracy. I dissent. The President of the United States challenges the legality of the manner in which certain Wisconsin election officials directed the casting of absentee ballots, asserting they adopted and implemented particular procedures in violation of Wisconsin law. The respondents implore this court to reject the challenge because, they argue, declaring the law at this point would "retroactively change the rules" after the election. It is THE LAW that constitutes "the rules" of the election and election officials are bound to follow the law, if we are to be governed by the rule of law, and not of men. Under the Wisconsin Constitution, "all governmental power derives 'from the consent of the governed' and government officials may act only within the confines of the authority the people give them. Wis. Const. art. I, § 1." Wisconsin Legislature v. Palm, 2020 WI 42 , ¶66, 391 Wis. 2d 497 , 942 N.W.2d 900 (Rebecca Grassl Bradley, J., concurring). The Founders designed our "republic to be a government of laws, and not of men . . . bound by fixed laws, which the people have a voice in making, and a right to defend." John Adams, Novanglus: A History of the Dispute with America, from Its Origin, in 1754, to the Present Time, in Revolutionary Writings of John Adams (C. Bradley Thompson ed. 2000) (emphasis in original). Allowing any person, or unelected commission of six, to be "bound by no law or limitation but his own will" defies the will of the people. Id. The importance of having the State's highest court resolve the significant legal issues presented by the petitioners warrants the exercise of this court's constitutional authority to hear this case as an original action. See Wis. Const. Art. VII, § 3. "The purity and integrity of elections is a matter of such prime importance, and affects so many important interests, that the courts ought never to hesitate, when the opportunity is offered, to test them by the strictest legal standards." State v. Conness, 106 Wis. 425 , 82 N.W. 288 , 289 (1900). While the court reserves this exercise of its jurisdiction for those original actions of statewide significance, it is beyond dispute that "[e]lections are the foundation of American government and their integrity is of such monumental importance that any threat to their validity should trigger not only our concern but our prompt action." State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123- W (S. Ct. Order issued June 1, 2020 (Rebecca Grassl Bradley, J., dissenting)). The majority notes that an action "may be filed by an aggrieved candidate in circuit court. Wis. Stat. § 9.01(6)." Justice Hagedorn goes so far as to suggest that § 9.01 "constitutes the 'exclusive judicial remedy' applicable to this claim." No statute, however, can circumscribe the Page 6 December 3, 2020 No. 2020AP1971-OA Trump v. Evers constitutional jurisdiction of the Wisconsin Supreme Court to hear this (or any) case as an original action. "The Wisconsin Constitution IS the law—and it reigns supreme over any statute." Wisconsin Legislature v. Palm, 391 Wis. 2d 497 , ¶67 n.3 (Rebecca Grassl Bradley, J., concurring). "The Constitution's supremacy over legislation bears repeating: 'the Constitution is to be considered in court as a paramount law' and 'a law repugnant to the Constitution is void, and . . . courts, as well as other departments, are bound by that instrument.' See Marbury [v. Madison], 5 U.S. (1 Cranch) [137] at 178, 180 [1803])." Mayo v. Wis. Injured Patients and Families Comp. Fund, 2018 WI 78 , ¶91, 383 Wis. 2d 1 , 914 N.W.2d 678 (Rebecca Grassl Bradley, J., concurring). Wisconsin Statute § 9.01 is compatible with the constitution. While it provides an avenue for aggrieved candidates to pursue an appeal to a circuit court after completion of the recount determination, it does not foreclose the candidate's option to ask this court to grant his petition for an original action. Any contrary reading would render the law in conflict with the constitution and therefore void. Under the constitutional-doubt canon of statutory interpretation, "[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt." Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 247. See also Wisconsin Legislature v. Palm, 391 Wis. 2d 497 , ¶31 ("[W]e disfavor statutory interpretations that unnecessarily raise serious constitutional questions about the statute under consideration."). While some will either celebrate or decry the court's inaction based upon the impact on their preferred candidate, the importance of this case transcends the results of this particular election. "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy." Purcell v. Gonzalez, 549 U.S. 1 , 4 (2006). The majority takes a pass on resolving the important questions presented by the petitioners in this case, thereby undermining the public's confidence in the integrity of Wisconsin's electoral processes not only during this election, but in every future election. Alarmingly, the court's inaction also signals to the WEC that it may continue to administer elections in whatever manner it chooses, knowing that the court has repeatedly declined to scrutinize its conduct. Regardless of whether the WEC's actions affect election outcomes, the integrity of every election will be tarnished by the public's mistrust until the Wisconsin Supreme Court accepts its responsibility to declare what the election laws say. "Only . . . the supreme court can provide the necessary clarity to guide all election officials in this state on how to conform their procedures to the law" going forward. State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 2020 (Rebecca Grassl Bradley, J., dissenting)). The majority's recent pattern of deferring or altogether dodging decisions on election law controversies4 cannot be reconciled with its lengthy history of promptly hearing cases involving 4 Hawkins v. Wis. Elec. Comm'n, 2020 WI 75 , ¶¶84, 86, 393 Wis. 2d 629 , 948 N.W.2d 877 (Rebecca Grassl Bradley, J., dissenting) ("The majority upholds the Wisconsin Elections Commission's violation of Wisconsin law, which irrefutably entitles Howie Hawkins and Angela Walker to appear on Wisconsin's November 2020 general election ballot as candidates for President and Vice President of the United States . . . . In dodging its responsibility to uphold the rule of law, the majority ratifies a grave threat to our republic, suppresses the votes of Page 7 December 3, 2020 No. 2020AP1971-OA Trump v. Evers voting rights and election processes under the court's original jurisdiction or by bypassing the court of appeals.5 While the United States Supreme Court has recognized that "a state indisputably has a compelling interest in preserving the integrity of its election process[,]" Burson v. Freeman, 504 U.S. 191 , 199 (1992), the majority of this court repeatedly demonstrates a lack of any interest in doing so, offering purely discretionary excuses or no reasoning at all. This year, the majority in Hawkins v. Wis. Elec. Comm'n declined to hear a claim that the WEC unlawfully kept the Green Party's candidates for President and Vice President off of the ballot, ostensibly because the majority felt the candidates' claims were brought "too late."6 But when litigants have filed cases involving voting rights well in advance of Wisconsin elections, the court has "take[n] a pass," Wisconsin citizens, irreparably impairs the integrity of Wisconsin's elections, and undermines the confidence of American citizens in the outcome of a presidential election"); State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 2020 (Rebecca Grassl Bradley, J., dissenting)) ("In declining to hear a case presenting issues of first impression immediately impacting the voting rights of Wisconsin citizens and the integrity of impending elections, the court shirks its institutional responsibilities to the people who elected us to make important decisions, thereby signaling the issues are not worthy of our prompt attention."); State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued June 1, 2020 (Rebecca Grassl Bradley, J., dissenting)) ("A majority of this court disregards its duty to the people we serve by inexplicably delaying the final resolution of a critically important and time-sensitive case involving voting rights and the integrity of Wisconsin's elections."). 5 See, e.g., NAACP v. Walker, 2014 WI 98 , ¶¶1, 18, 357 Wis. 2d 469 , 851 N.W.2d 262 (2014) (this court took jurisdiction of appeal on its own motion in order to decide constitutionality of the voter identification act enjoined by lower court); Elections Bd. of Wisconsin v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650 , 653, 670, 597 N.W.2d 721 (1999) (this court granted bypass petition to decide whether express advocacy advertisements advocating the defeat or reelection of incumbent legislators violated campaign finance laws, in absence of cases interpreting applicable statutes); State ex rel. La Follette v. Democratic Party of United States, 93 Wis. 2d 473 , 480-81, 287 N.W.2d 519 (1980) (original action deciding whether Wisconsin open primary system was binding on national political parties or infringed their freedom of association), rev'd, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981); State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544 , 548, 126 N.W.2d 551 (1964) (original action seeking to enjoin state from holding elections pursuant to legislative apportionment alleged to violate constitutional rights); State ex rel. Broughton v. Zimmerman, 261 Wis. 398 , 400, 52 N.W.2d 903 (1952) (original action to restrain the state from holding elections based on districts as defined prior to enactment of reapportionment law), overruled in part by Reynolds, 22 Wis. 2d 544 ; State ex rel. Conlin v. Zimmerman, 245 Wis. 475 , 476, 15 N.W.2d 32 (1944) (original action to interpret statutes in determining whether candidate for Governor timely filed papers to appear on primary election ballot). 6 Hawkins v. Wis. Elec. Comm'n, 2020 WI 75 , ¶5, 393 Wis. 2d 629 , 948 N.W.2d 877 (denying the petition for leave to commence an original action). Page 8 December 3, 2020 No. 2020AP1971-OA Trump v. Evers thereby "irreparably den[ying] the citizens of Wisconsin a timely resolution of issues that impact voter rights and the integrity of our elections." State ex rel. Zignego v. Wis. Elec. Comm'n, 2020AP123-W (S. Ct. Order issued January 13, 2020 (Rebecca Grassl Bradley, J., dissenting)). Having neglected to identify any principles guiding its decisions, the majority leaves Wisconsin's voters and candidates guessing as to when, exactly, they should file their cases in order for the majority to deem them worthy of the court's attention. The consequence of the majority operating by whim rather than rule is to leave the interpretation of multiple election laws in flux—or worse yet, in the hands of the unelected members of the WEC. "To be free is to live under a government by law . . . . Miserable is the condition of individuals, danger is the condition of the state, if there is no certain law, or, which is the same thing, no certain administration of the law . . . ." Judgment in Rex vs. Shipley, 21 St Tr 847 (K.B. 1784) (Lord Mansfield presiding). The Wisconsin Supreme Court has an institutional responsibility to decide important questions of law—not for the benefit of particular litigants, but for citizens we were elected to serve. Justice for the people of Wisconsin means ensuring the integrity of Wisconsin's elections. A majority of this court disregards its duty to the people of Wisconsin, denying them justice. "No aspect of the judicial power is more fundamental than the judiciary's exclusive responsibility to exercise judgment in cases and controversies arising under the law." Gabler v. Crime Victims Rights Bd., 2017 WI 67 , ¶37, 376 Wis. 2d 147 , 897 N.W.2d 384 . Once again, a majority of this court instead "chooses to sit idly by,"7 in a nationally important and time-sensitive case involving voting rights and the integrity of Wisconsin's elections, depriving the people of Wisconsin of answers to questions of statutory law that only the state's highest court may resolve. The majority's "refusal to hear this case shows insufficient respect to the State of [Wisconsin], its voters,"8 and its elections. "This great source of free government, popular election, should be perfectly pure." Alexander Hamilton, Speech at New York Ratifying Convention (June 21, 1788), in Debates on the Federal Constitution 257 (J. Elliot ed. 1876). The majority's failure to act leaves an indelible stain on our most recent election. It will also profoundly and perhaps irreparably impact all local, statewide, and national elections going forward, with grave consequence to the State of Wisconsin and significant harm to the rule of law. Petitioners assert troubling allegations of noncompliance with Wisconsin's election laws by public officials on whom the voters rely to ensure free and fair elections. It is not "impulse"9 but our solemn judicial duty to say what the law is that compels the exercise of our original jurisdiction in this case. The majority's failure to embrace its duty (or even 7 United Student Aid Funds, Inc. v. Bible, 136 S. Ct. 1607 , 1609 (2016) (Thomas, J., dissenting from the denial of certiorari). 8 County of Maricopa, Arizona v. Lopez-Valenzuela, 135 S. Ct. 2046 , 2046 (2015) (Thomas, J., dissenting from the denial of certiorari). 9 See Justice Hagedorn's concurrence. Page 9 December 3, 2020 No. 2020AP1971-OA Trump v. Evers an impulse) to decide this case risks perpetuating violations of the law by those entrusted to follow it. I dissent. I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK and Justice ANNETTE KINGSLAND ZIEGLER join this dissent. Sheila T. Reiff Clerk of Supreme Court Address list continued: Andrew A. Jones Charles G. Curtis Andrew J. Kramer Michelle M. Umberger James F. Cirincione Sopen B. Shah Hansen Reynolds LLC Will M. Conley 301 N. Broadway St., Ste. 400 Perkins Coie LLP Milwaukee, WI 53202-2660 One East Main St., Suite 201 Madison, WI 53703 John W. McCauley Hansen Reynolds LLC Justin A. Nelson 10 E. Doty St. Ste 800 Stephen Shackelford Jr. Madison, WI 53703 Davida Brook Susman Godfrey LLP Jeffrey A. Mandell 1000 Louisiana Street Rachel E. Snyder Suite 5100 Stafford Rosenbaum LLP Houston, TX 77002 222 W. Washington Avenue Post Office Box 1784 Paul Smith Madison, WI 53701 Campaign Legal Center 1101 14th Street NW, Suite 400 Daniel R. Suhr Washington, DC 20005 Liberty Justice Center 190 LaSalle St., Ste. 1500 David S. Lesser Chicago, IL 60603 Jamie Dycus Wilmer Cutler Pickering Hale and Dorr LLP Matthew W. O’Neill 7 World Trade Center Fox, O’Neill & Shannon, S.C. 250 Greenwich Street 622 North Water Street, Suite 500 New York, NY 10007 Milwaukee, WI 53202 Page 10 December 3, 2020 No. 2020AP1971-OA Trump v. Evers Marc E. Elias Seth P. Waxman John Devaney Wilmer Cutler Pickering Hale and Dorr LLP Zachary J. Newkirk 1875 Pennsylvania Ave., NW Perkins Coie LLP Washington, DC 20006 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005